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Law Journal 


Reconsidering Competition 

When Children's Rights "Collide": Free Speech vs. The 
Right to be Let Alone in the Context of Off- Campus 

Maurice E. Stucke 
Christine M. Lorillard 

The NCAA Letter of Intent: A Voidable Agreement for 

Debra D. Burke & 
Angela J. Grube 


Juveniles are Different: Juvenile Life Without Parole 
After Graham v. Florida 

Michael Barbee 

Any Club That Would Have me as a Member: The 
Historical Basis for a Non- Expressive and Non- 
Intimate Freedom of Association 

Patrick Lofton 

Published by Students at the 
University of Mississippi School of Law 

Volume 81 


Number 2 

Digitized by the Internet Archive 

in 2012 with funding from 

LYRASIS Members and Sloan Foundation 

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Mississippi Law Journal 

Published by Students at the 
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Copyright e 2011, Mississippi Law Journal, Inc. 


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Published by Students at 
The University of Mississippi School of Law 

VOLUME 81 2011 NUMBER 2 



Maurice E. Stucke 10 7 


Christine M. Lorillard 189 


Debra D. Burke & Angela J. Grube 265 




.Michael Barbee 299 

.Patrick Lofton 32 7 


Maurice E. Stucke* 

Introduction 108 

I. Defining Competition ill 

A. Common Definitions of Competition Ill 

B. Perfect vs. Dynamic Competition 118 

II. Re-examining the Assumptions Underlying 
Competition and Competition Law 120 

III. Four Scenarios of Competition and Their 

Policy Implications 122 

A. Scenario I: Both Firms and Consumers Are 

Rational 122 

1. Scenario I's Policy Implications Assuming 

the Government Is Rational 126 

2. Scenario I's Policy Implications Assuming 

the Government Is Bounded Rational 128 

B. Scenario II: Rational Firms and Bounded 

Rational Consumers 130 

1. Scenario IPs Policy Risks Assuming the 
Government Is Rational 139 

2. Scenario IPs Policy Risks Assuming the 
Government Is Bounded Rational 144 

* Associate Professor, University of Tennessee College of Law; Senior Fellow. 
American Antitrust Institute. I wish to thank the faculty and students at Shanghai 
University of Finance and Economics, Shandong University, Jinan University, 
Southwest University of Political Science and Law, Beijing University of Chemical 
Technology, China University of Geosciences, Beijing Normal University, China 
Institute of Competition Policy at the University of International Business and 
Economics, and the Chinese Academy of Social Sciences, where I presented this paper 
and benefitted greatly from their observations. I also wish to thank Kenneth M. 
Davidson, Don Leatherman, Philip Marsden, Barak Y. Orbach, D. Daniel Sokol, 
Simonetta Vezzoso, Dick Wirtz, and the participants of the Fifth Annual ASCOLA 
Conference for their helpful comments. Finally, I thank the University of Tennessee 
College of Law and W.W. Davis Faculty Development Fund for the summer research 



3. Policy Alternatives under Scenario II 146 

C. Scenario III: Bounded Rational Firms and 

Rational Consumers 154 

1. Scenario Ill's Policy Implications Assuming 

the Government Is Rational 157 

2. Scenario Ill's Policy Implications Assuming 

the Government Is Bounded Rational 160 

D. Scenario IV: Bounded Rational Firms and 
Consumers 162 

1. Scenario IV's Policy Risks Assuming the 
Government Is Rational 171 

2. Scenario IV's Policy Risks Assuming the 
Government Is Bounded Rational 175 

3. Policy Alternatives under Scenario IV 182 

Conclusion 186 


In the United States, the financial crisis prompted 
unprecedented government bailouts for banks, mortgage servicers, 
the insurance giant American International Group, and 
automotive makers General Motors and Chrysler. 1 The U.S. 
economy shifted to financial services and products, and more 
behavioral regulation is underway for financial institutions 
deemed too-big-and-integral-to-fail. Federal regulators were 
incapable of addressing the abuses leading up to the financial 
crisis, unaware initially of the scope of the crisis, and inept in 
their initial response. 2 This is especially troubling when the U.S. 
Supreme Court, of late, appears more comfortable with the 
antitrust function being subsumed in the regulatory framework. 3 

1 Bailout Recipients, PROPUBLICA, http://bailout. 
(last visited Nov. 1, 2011). 

2 See Joseph E. Stiglitz, Freefall: America, Free Markets, and the Sinking 
of the World Economy (2010). 

s Pac. Bell Tel. Co. v. Linkline Commc'ns, Inc., 129 S. Ct. 1109, 1124 (2009) 
(Breyer, J., concurring) ("When a regulatory structure exists to deter and remedy 
anticompetitive harm, the costs of antitrust enforcement are likely to be greater than 
the benefits."); Credit Suisse Sec. (USA) v. Billing, 551 U.S. 264, 280-81 (2007); Verizon 
Commc'ns Inc. v. Law Offices of Curtis V. Trinko, 540 U.S. 398, 414-15 (2004); see also 


Although one can distinguish the financial services industry 
from other industries, the crisis raised important issues of market 
failure, weak regulation, the lack of understanding of systemic 
risk in financial markets, and moral hazard. Policymakers are 
now re-examining fundamental issues, such as the efficiency of 
markets 4 and the role of legal, social, and ethical norms in a 
market economy. 5 The financial crisis has also prompted calls for 
reinvigorating antitrust enforcement in the United States, 
toughening antitrust's legal standards 6 and breaking up firms 
deemed too-big-and-integral-to-fail. 7 

In reconsidering their antitrust policies, policymakers should 
return to first principles. Antitrust policy is built on a flawed 
assumption of rationality. As a result, antitrust provides an 
incomplete, and at times incorrect, account of competition. For the 

Edward D. Cavanagh, The Private Antitrust Remedy: Lessons From Tlie American 
Experience, 41 LOY. U. CHI. L.J. 629, 636 (2010); Stacey L. Dogan & Mark A. Lemley, 
Antitrust Law and Regulatory Gaming, 87 TEX. L. REV. 685 (2009). 

4 See Christine A. Varney, Assistant Att'y Gen., Antitrust Div., U.S. 
Dep't of Justice, Vigorous Antitrust Enforcement In This Challenging Era, Remarks at 
the United States Chamber of Commerce (May 12, 2009), available at (rejecting assumption that 
markets are generally self-policing and self-correcting); see also J. Thomas Rosch, 
Commissioner, Fed. Trade Comm'n, Managing Irrationality: Some Observations on 
Behavioral Economics and the Creation of the Consumer Financial Protection Agency, 
Remarks at the Conference on the Regulation of Consumer Financial Products (Jan. 6, 
2010), available at 

5 see, e.g., george a. akerlof & robert j. shiller, animal spirits: how 
Human Psychology Drives The Economy, And Why It Matters For Global 
Capitalism 26 (2009); Robert Skidelsky, Keynes: The Return of the Master 189 
(2009); John Authers, Wanted: New Model for Markets, FlN. TIMES, Sept. 29, 2009, at 9; 
Rana Foroohar, May the Best Tlieory Win: How Economists Are Competing To Make 
Sense Of Our Failed Financial System, NEWSWEEK, Feb. 1, 2010, at 42-44 (discussing 
annual meeting of American Economic Association); Paul Krugman, How Did 
Economists Get It So Wrong?, N.Y. TIMES, Sept. 6, 2009, at 36; Gillian Tett, The 
Emotional Markets Hypothesis and Greek Bonds, FlN. TIMES, Apr. 10, 2010, at 7; 
STIGLITZ, supra note 2, at 238-74. 

6 See Press Release, U.S. Dep't of Justice, Justice Department Withdraws Report 
On Antitrust Monopoly Law: Antitrust Division to Apply More Rigorous Standard With 
Focus on the Impact of Exclusionary Conduct on Consumers (May 11, 2009), available 

7 see, e.g., simon johnson & james kwak, 13 bankers: the wall street 
Takeover and the Next Financial Meltdown 208-22 (2010). 


past thirty years, the Chicago, 8 post-Chicago, 9 and to the extent 
distinguishable, Harvard Schools 10 have debated over anti trust's 
legal standards. But all three schools assume a marketplace of 
rational 11 profit- maximizing firms and consumers with perfect 
willpower. 12 Therein lies the problem. 

For meaningful change after the financial crisis, competition 
policymakers must reconsider three fundamental interrelated 
questions: First, what is competition? Second, what are the goals 
of the competition laws? Third, what legal standards should be 
used to promote these goals? 

This article addresses the first question — what is 
competition? 13 The question seems so basic that it need not be 
asked. But as Part I discusses, no satisfactory definition of 
competition exists. Some consider competition as an idealized end- 
state (such as static price competition under the economic model 
of perfect competition). Others view competition as a dynamic 

Part II explores one reason why multiple definitions of 
competition remain. Any theory of competition depends on its 

8 See, e.g., RICHARD A. POSNER, ANTITRUST LAW (2d ed. 2001); ROBERT H. BORK, 

The Antitrust Paradox: A Policy at War with Itself (1978). 


Analysis of Antitrust Principles and Their Application 1 113, at 134 (2d ed. 2000) 

("[B]usiness firms are (or must be assumed to be) profit-maximizers."); Herbert 
Hovenkamp, Post-Chicago Antitrust: A Review and Critique, 2001 COLUM. BUS. L. REV. 
258 (2001); Symposium, Post-Chicago Economics, 63 ANTITRUST L.J. 445 (1995). 

10 See William E. Kovacic, The Intellectual DNA of Modern U.S. Competition Law 
for Dominant Firm Conduct: The Chicago/ Harvard Double Helix, 2007 COLUM. BUS. L. 
REV. 1 (2007) (summarizing contributions of Harvard School to modern antitrust 

11 Rationality under neoclassical economic theory has a narrow meaning — 
individuals are objective, seek out the optimal amount of information, readily and 
continually update their prior factual beliefs with relevant and reliable empirical data, 
and choose, after conducting a cost-benefit analysis, the best action according to stable, 
well-defined preferences. Colin Camerer et al., Regulation for Conservatives: 
Behavioral Economics and the Case for "Asymmetric Paternalism," 151 U. PA. L. REV. 
1211, 1214-15 (2003). Rationality, as discussed herein, does not encompass its other 
meanings, such as being fair, pragmatic, thoughtful, compassionate, or virtuous. Id. 

12 Humans with perfect willpower take actions that are consistent with their own 
long-term interests. 

13 I discuss the second issue in Reconsidering Antitrust's Goals, 53 B.C. L. REV. 
(forthcoming 2012), available at 


premises, the validity of which may not hold true across 
industries, countries, and time. Using recent developments in 
behavioral economics, Part II varies one premise of competition — 
the relative rationality of market firms and consumers. As the 
behavioral economic literature has shown over the past thirty 
years, and the recent financial crisis bore out, consumers and 
firms do not always behave rationally. Relaxing the assumption of 
rational firms and consumers yields four scenarios of competition. 
Part III analyzes each scenario of competition and its policy 
implications. When one relaxes the assumption of rational firms 
and consumers, one's theory of competition extends beyond the 
current focus on static price competition in narrowly defined 
markets. Issues of systemic risk, behavioral exploitation, herding 
behavior, overconfidence bias, the importance of maintaining trial - 
and-error feedback loops, consumer choice, and competitive 
diversity all increase in importance. Part III examines the 
antitrust policy implications for each scenario of competition — if 
the government is relatively more or less rational than market 
participants. This article introduces several important challenges 
facing competition policy and provides several mechanisms for 
competition agencies to improve their policies. 

I. Defining Competition 

A. Common Definitions of Competition 

One popular antitrust treatise states, "Today it seems clear 
that the general goal of the antitrust laws is to promote 
'competition' as the economist understands that term." 14 One 
problem, the treatise recognizes, is that economists can have a 
different conception of competition than lawyers and laypersons. 15 
Another problem is that economists have not reached consensus in 
defining competition. 

14 AEEEDA & HOVENKAMP, supra note 9, at 4; see also AM. BAR ASS'N SECTION OF 

Antitrust Law, Report on Antitrust Policy Objectives (Feb. 12, 2003), available 


15 AREEDA & HOVENKAMP, supra note 9, at 3. 


The United States' Sherman Antitrust Act was enacted over 
a century ago. 16 But antitrust law, Robert Bork observed, "has not 
arrived at one satisfactory definition of 'competition.'" 17 This is 
surprising, considering the concept of competition is central to 
competition policy and economic thinking in general. Competition 
law focuses on anti-competitive restraints, 18 and one oft-described 
goal is to ensure an effective competitive process. 19 Yet the 
concept of competition, as economist John Vickers said, "has taken 
on a number of interpretations and meanings, many of them 
vague." 20 Others agree. 21 Most jurisdictions "maintain that their 

16 15 U.S.C. §§ 1-7 (2006). 

17 BORK, supra note 8, at 61 (1978). 

18 See, e.g., Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 898-99 
(2007) (noting how courts can "devise rules over time for offering proof, or even 
presumptions where justified, to make the rule of reason a fair and efficient way to 
prohibit anticompetitive restraints and to promote procompetitive ones"). 

19 Int'l Competition Network: Unilateral Conduct Working Grp., Report on 
the Objectives of Unilateral Conduct Laws, Assessment of 
Dominance/Substantial Market Power, and State-Created Monopolies 6 (2007) 

[hereinafter 2007 ICN REPORT], available at http://www.internationalcompetition 

20 John Vickers, Concepts of Competition, 47 OXFORD ECON. PAPERS 1, 3 (1995). 

21 United States v. Kennecott Copper Corp., 231 F. Supp. 95, 103 (S.D.N.Y. 1964) 
("There is no one definition of competition. Economists do not agree over the meaning 
of the term nor do they agree how it can be achieved."); STANLEY N. BARNES ET AL., THE 
Attorney General's National Committee to Study the Antitrust Laws 318 
(1955) ("The idea of competition itself ... is not so easy to define."); Michael E. Porter, 
Building the Microeconomic Foundations of Prosperity: Findings from the Business 

Creating Unique Value for Antitrust, the Economy, Healthcare, Education 

AND BEYOND 64 (Charles D. Weller ed., 2004) (competitiveness "remains a concept that 
is not well understood, despite widespread acceptance of its importance"); WORLD 

Bank, World Development Report 2002: Building Institutions for Markets 140 

(2002), available at 
92204010635 (finding in its survey of fifty countries' competition laws, "that different 
conceptions of competition exist across countries"); Jay B. Barney, Types of Competition 
and the Theory of Strategy: Toward an Integrative Framework, 11 ACAD. MGMT. Rev. 
791, 798 (1986) ("Competition ... is a concept that can mean different things at 
different times to different firms."); Michael S. Lewis-Beck, Maintaining Economic 
Competition: the Causes and Consequences of Antitrust, 41 J. POL. 169, 171 (1979) 
(noting "the lack, among economists, of a generally accepted definition of competition"); 
Paul J. McNulty, Economic Theory and the Meaning of Competition, 82 Q.J. ECON. 639, 
639 (1968) ("There is probably no concept in all of economics that is at once more 
fundamental and pervasive, yet less satisfactorily developed, than the concept of 


competition laws 'preserve competition,"' observed the American 
Bar Association, but preserving competition "does not always 
mean the same thing in different jurisdictions and is sometimes 
only one of several objectives pursued under a country's antitrust 
law." 22 The Chilean Competition Tribunal, for example, said, "the 
only objective of competition policy is to promote and protect 
competition," but then recognized that "one of the main difficulties 
is to define legally what 'free competition means,' or to articulate 
why competition itself should be protected." 23 

Some view competition in its natural setting — as a cutthroat 
fight over scarce resources. 24 But within animal ecology, genetics, 
and evolution, the term competition has multiple meanings. 25 
Antitrust policy, of course, does not encourage market participants 
in seeking scarce resources to maim or kill others. 26 Competition 
should not increase society's mortality rate. 27 Even within the 
animal kingdom, competition for scarce resources is not a 

competition."); Donghyun Park, The Meaning of Competition: A Graphical Exposition, 
29 J. ECON. EDUC 347, 356 (1998) ("[C]ompetition has become one of the most 
ambiguous concepts in economics."); George J. Stigler, Perfect Competition, Historically 
Contemplated, 65 J. POL. ECON. 1 (1957) (noting that the concept of competition was 
long treated with casualness); Neri Salvadori & Rodolfo Signorino, The Classical 
Notion of Competition Revisited 2 (MPRA Paper No. 22499 May 3, 2010), available at 
http://mpra.ub. (noting that few 
would disagree with Vickers' statement). 

22 AM. BAR ASS'N, supra note 14, at 3. 

23 2007 ICN REPORT, supra note 19, at 8. The report went on to state: 

In 2004, when the [Chilean Competition] Act was amended, the executive and 
legislative powers discussed whether 'free competition' should be defined 
more narrowly as a right to participate in economic activities, a means of 
promoting economic efficiency, or a means of enhancing consumer welfare. 
The legislators [as reported by the ICN] decided that the meaning of 'free 
competition,' that is, an effective competitive process, should be left to the 
Tribunal's interpretation, on a case-by-case basis. 


24 See R.J. Reynolds Tobacco Co. v. Cigarettes Cheaper!, 462 F.3d 690 (7th Cir. 
2006) (noting that '"cutthroat competition' is a term of praise rather than 
condemnation" and consumers gain when firms try to "kill" the competition and take as 
much business as they can). 

25 See L.C. Birch, The Meanings of Competition, 91 AM. NATURALIST 5, 6 (1957). 

26 Id. at 6. 

27 Id. at 9. 


prerequisite for "survival of the fittest," the natural selection of 
species. 28 

Many view competition as rivalry: "the effort of two or more 
parties acting independently to secure the business of a third 
party by offering the most favorable terms." 29 Several courts 
applied similar definitions, such as the "effort of two or more 
parties, acting independently, to secure the custom of a third 
party by the offer of the most favorable terms. . . . [t]he struggle 
between rivals for the same trade at the same time"; 30 and the 
"independent endeavor of two or more persons or organizations 
within the realm of a chosen market place, to obtain the business 
patronage of others by means of various appeals, including the 
offer of more attractive terms or superior merchandise." 31 

Others question this characterization. Increasing the number 
of rivals does not necessarily increase, and can diminish, 
incentives to compete. 32 "An economist sees competition not in 
terms of rivalry per se, but in terms of market performance," said 
a former Department of Justice official, 33 further stating: 

An economist would say that a market is perfectly 
competitive when firms price their output at marginal cost 
and costs are minimized by internal efficiency. This does not 
necessarily require a large number of rivals. Where entry and 

28 Id. at 13. 

29 Competition Definition, MERRIAM-WEBSTER.COM, http://www.merriam-webster 
.com/dictionary/competition (last visited Nov. 1, 2011); BARNES ET AL., supra note 21, at 
318 (one conception of competition is "the self-interested and independent rivalry of 
two or more private competitors"). 

30 Lipson v. Socony Vacuum Corp., 87 F.2d 265, 270 (1st Cir. 1937) (internal 
citations and quotation marks omitted). 

31 United States v. Aluminum Co. of Am., 91 F. Supp. 333, 355 (S.D.N. Y. 1950); see 
also New Eng. Theatres, Inc. v. Lausier, 86 F. Supp. 852, 856 (D. Me. 1949); United 
States v. Sutherland, 9 F. Supp. 204, 205 (W.D. Mo. 1934). 

32 See Avishalom Tor & Stephen M. Garcia, The N-Effect: Beyond Winning 
Probabilities. 21 PSYCHOL. SCI. 748 (2010), available at http://www- 

33 William J. Kolasky, Deputy Assistant Att'y General, Antitrust Div., U.S. Dep't of 
Justice, What Is Competition?, Address Before the Seminar on Convergence (Oct. 28, 
2002). available at http://www.justice.gOv/atr/public/speeches/200440.htm#N_7. 


exit are costless, markets can be perfectly competitive even 
with only one firm serving the entire market. 34 

The official characterized competition as "the process by which 
market forces operate freely to assure that society's scarce 
resources are employed as efficiently as possible to maximize total 
economic welfare." 35 

Competition, like athletic contests, 36 is not always zero-sum. 
It involves cooperation through voluntary endeavors among 
suppliers, wholesalers, retailers, and consumers. One can view 
competition as the voluntary process society elects to resolve 
conflicts of interest among its members. 37 

Competition can be vertical among firms in the distribution 
chain. Manufacturers often have a complementary and 
competitive relationship with firms from whom they buy and to 
whom they sell. 38 Not surprisingly, two of Professor Michael 
Porter's famous five competitive forces that impact a company's 
profits are vertical: (i) powerful customers seeking to "capture 
more value by forcing down prices, demanding better quality or 
more service (thereby driving up costs), and generally playing 
industry participants off against one another, all at the expense of 
industry profitability"; and (ii) "powerful suppliers" seeking to 
"capture more of the value for themselves by charging higher 
prices, limiting quality or services, or shifting costs to industry 
participants." 39 

34 Id. 

35 Id. 

36 See NCAA v. Bd. of Regents of Univ. of Okla., 468 U.S. 85 (1984). 


38 Robert L. Steiner, Market Power in Consumer Goods Industries, in PRIVATE 
Labels, Brands, and Competition Policy: The Changing Landscape of Retail 
COMPETITION 73 (Ariel Ezrachi & Ulf Bernitz eds., 2009); Guidelines on the 
Assessment of Horizontal Mergers under the Council Regulation on the Control of 
Concentrations Between Undertakings, 2004 O.J. (C 31) K 64 [hereinafter Assessment 
of Horizontal Mergers], available at ("The competitive 
pressure on a supplier is not only exercised by competitors but can also come from its 

39 Michael E. Porter, The Five Competitive Forces That Shape Strategy, HARV. BUS. 
REV., Jan. 2008, at 29-30; see also Toys "R" Us, Inc. v. FTC, 221 F.3d 928 (7th Cir. 


Competition is also normative. 40 What we observe — as 
competition reflects, in part — are the legal constraints and 
incentives as well as informal social, ethical, and moral norms. 41 
Societies distinguish between "competition on the merits" and 
unfair methods of competition. 42 Those terms, subject to different 
interpretations, 43 imply that competition can be good or bad, 
based on society's "generalized standards of fairness and social 
utility." 44 Market participants, through the legislature, industry 
codes, and informal norms, set the rules and punishments. At 
times, competition is considered "ruinous" or "cutthroat." 45 At 
times, competition with foreign firms is criticized as "structurally 
and qualitatively unequal." 46 At other times, competition is 
curtailed to promote other societal goals. 47 

40 See Xiaoye Wang, Tlie New Chinese Anti-Monopoly Law: A Survey of a Work in 
Progress, 54 ANTITRUST BULL. 579, 580 (2009) (observing how China until the late 
1970s viewed the term competition pejoratively "as a capitalist monster"). 

41 See Douglass C. North, Understanding the Process of Economic Change 

60, 123 (2005). 

42 See 15 U.S.C. § 45(a) (2006) (prohibiting "unfair or deceptive acts or practices in 
or affecting commerce"); Commission Regulation 864/2007, art. 6, 2007 O.J. (L 199/40) 
(EC) (discussing unfair competition and acts restricting free competition); Free Trade 
Agreement Between the European Union and its Member States and the Republic of 
Korea, 2011 O.J. (L127/6); FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244 (1972) 
("[U]nfair competitive practices were not limited to those likely to have anticompetitive 
consequences after the manner of the antitrust laws; nor were unfair practices in 
commerce confined to purely competitive behavior."). 

43 See Organisation for Economic Co-operation and Development, What is 
Competition on the Merits?, POL'Y BRIEF, June 2006, at 1, available at (noting that "expression competition 
on the merits" has "never been satisfactorily defined," which has "led to a discordant 
body of case law that uses an assortment of analytical methods," which in turn "has 
produced unpredictable results and undermined the term's legitimacy along with 
policies that are supposedly based on it"). 

44 Restatement (Third) of Unfair Competition § i, at 9 (1993). 

45 See Organisation for Economic Co-operation and Development, Cut-Throat 
detail. asp?ID=3186 (last visited Nov. 1, 2011) (Cut-throat competition "refers to 
situations when competition results in prices that do not chronically or for extended 
periods of time cover costs of production, particularly fixed costs. This may arise in 
secularly declining or 'sick' industries with high levels of excess capacity or where 
frequent cyclical or random demand downturns are experienced."). 

46 James Kynge, China Shakes the World: A Titan's Rise and Troubled 
Future — and the Challenge for America 109 (2007) (concerns over China's 


Nor is competition always desirable. Status competition 
(including competing over conspicuous consumption) can increase 
envy and misery. 48 As economist Richard Layard observed, "We do 
want the maximum of competition between firms, but not between 
individuals. We want a lot of cooperation between individuals, for 
one reason above all — that life is more enjoyable that way." 49 

When referring positively to competition, policymakers often 
cite its effects, such as "low prices, high quality products, a wide 
selection of goods and services, and innovation." 50 But the effects 
do not define competition itself and are sometimes inconsistent. 
Higher prices and reduced output, remarked the Supreme Court, 
are "the paradigmatic examples of restraints of trade that the 
Sherman Act was intended to prohibit." 51 But a divided Court 
recently recognized that vertical restraints that lead to higher 
prices can nonetheless be pro-competitive. 52 Manufacturers today 
can prevent retailers — through resale price maintenance — from 
discounting their goods. At times, increased price competition (for 

currency being undervalued, and keeping costs artificially low with poor safety, 
environmental and worker standards, and by subsidizing energy and water). 

47 See United States v. Frankfort Distilleries, Inc., 324 U.S. 293, 301 (1945) 
(Frankfurter, J., concurring) ("If a State for its own sufficient reasons deems it a 
desirable policy to standardize the price of liquor within its borders either by a direct 
price-fixing statute or by permissive sanction of such price-fixing in order to discourage 
the temptations of cheap liquor due to cutthroat competition, the Twenty-first 
Amendment gives it that power and the Commerce Clause does not gainsay it."). 

48 See Maurice E. Stucke, Money, Is That What I Want? Competition Policy and the 
Role of Behavioral Economics, 50 SANTA Clara L. Rev. 893 (2010). 

49 Richard Layard, Happiness and Public Policy: A Challenge to the Profession, 116 
ECON. J. C24, C31 (2006). 

50 Assessment of Horizontal Mergers, supra note 38; see also N. Pac. Ry. Co. v. 
United States, 356 U.S. 1, 4 (1958) ("[UJnrestrained interaction of competitive forces 
will yield the best allocation of our economic resources, the lowest prices, the highest 
quality and the greatest material progress . . . ."); U.S. DEP'T OF JUSTICE, ANTITRUST 
ENFORCEMENT AND THE CONSUMER 1 (1996), available at 
USAPubs.php?PubID=5195 ("Free and open competition benefits consumers by 
ensuring lower prices and new and better products."); FED. TRADE COMM'N, 

Competition Counts: How Consumers Win When Businesses Compete (Mar. 2007), 

available at 

("Competition in America is about price, selection, and service. It benefits consumers 
by keeping prices low and the quality and choice of goods and services high."). 

si NCAA v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 107-08 (1984). 

52 Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007). 


example, intra-brand competition 53 ) leads to more free-riding, 
fewer services and innovation, and ultimately fewer choices and 
firms. 54 At times, greater innovation comes from excluding 
competitors from making, using, or selling the product at a lower 
price. 55 

B. Perfect vs. Dynamic Competition 

Within antitrust, two popular theories of competition are as: 
(i) an ideal end-state (perfect competition), and (ii) a process 
(dynamic competition). 56 Perfect competition, according to some, is 
"the most competitive market imaginable in which everybody is a 
price-taker." 57 In the "perfectly competitive" market, "buyers and 
sellers are so numerous and well informed that each can act as a 
price-taker, able to buy or sell any desired quantity without 

53 See Cont'l T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36 (1977). A vertical non- 
price restraint can potentially and simultaneously reduce "intra-brand competition" 
(e.g., competition among Sylvania dealers for Sylvania television sets) and stimulate 
inter-brand competition (e.g., competition among different manufacturers of television 
sets, such as Zenith or RCA). 

54 See Leegin Creative Leather Prods., 551 U.S. at 890-91; Louis D. Brandeis, Price 
(1930) (observing how "[u]nrestricted competition . . . leads to monopoly"); see also U.S. 

Dep't of Justice & Fed. Trade Comm'n, Antitrust Enforcement and 
Intellectual Property Rights: Promoting Innovation and Competition 34 (Apr. 

2007), available at 
(discussing "a winner-take-all standards war," in which "firms vigorously compete . . . 
to establish their technology as the de facto standard"); Peter O. Steiner, Program 
Patterns and Preferences, and the Workability Competition in Radio Broadcasting, 66 
Q.J. ECON. 194, 212-17 (1952). 

55 See Pfaff v. Wells Elecs., Inc., 525 U.S. 55, 63 (1998) ("The balance between the 
interest in motivating innovation and enlightenment by rewarding invention with 
patent protection on the one hand, and the interest in avoiding monopolies that 
unnecessarily stifle competition on the other, has been a feature of the federal patent 
laws since their inception."); H.R. REP. No. 60-2222, at 7 (1909) (copyright law 
considers "how much the monopoly granted [would] be detrimental to the public . . . 
[as] the granting of such exclusive rights, under the proper terms and conditions, 
confers a benefit upon the public that outweighs the evils of the temporary monopoly"). 

56 Mark Blaug, Is Competition Such a Good Thing? Static Efficiency Versus 
Dynamic Efficiency, 19 REV. INDUS. ORG. 37, 37 (2001) (noting distinction goes to early 
history of economics). 

57 Competition Definition, EC0N0MIST.COM, 
a-to-z/c (last visited Nov. 1, 2011). 


affecting the market price." 58 Between monopoly and perfect 
competition are degrees of imperfect competition. 59 

Others, like F.A. Hayek, question this theory of 
competition. 60 Competition by its nature is not an end-state but a 
complex and unpredictable dynamic process. The imperfections 
and limitations of human knowledge and the variety of conditions 
intrinsic to or affecting markets (including legal, social and ethical 
norms, technology, production, and service norms) necessitate 
against a stable competitive end-state. 

The 2010 revisions to the U.S. Horizontal Merger Guidelines 
reflect the divide between static price competition and competition 
as a dynamic process. 61 The 2010 Guidelines are an improvement 
over the earlier Guidelines in recognizing non-price dimensions of 
competition. 62 But the criticism remains that the 2010 Guidelines 
primarily focus on static competition in narrowly defined antitrust 
markets. 63 Thus, one complaint endures. Competition officials 
recognize the importance of dynamic competition for our nation's 

58 John Black, A Dictionary of Economics 348 (1997); see also William J. 

Kolasky, What Is Competition? A Comparison of U.S. and European Perspectives, 49 

Antitrust Bull. 29, 31 (2004). 

59 see f.m. scherer, industrial market structure and economic 

PERFORMANCE 16-18 (2d ed. 1980). 

60 Friedrich A. Hayek, Individualism and Economic Order (1948); see also 2007 
ICN REPORT, supra note 19, at 28 (noting that ten of thirty-two surveyed competition 
agencies "focus[ed] on fostering a competitive process that is dynamic in nature"). 

61 U.S. Dep't of Justice & Fed. Trade Comm'n, Horizontal Merger Guidelines 

(2010), available at 

62 Compare id. at § 2 (discussing throughout how market power can be manifested 
in "non-price terms and conditions that adversely affect customers, including reduced 
product quality, reduced product variety, reduced service, or diminished innovation"), 

with U.S. Dep't of Justice & Fed. Trade Comm'n, Horizontal Merger Guidelines 

§ 0.1 n.6 (1992, revised 1997), available at 
/public/guidelines/hmg.pdf (relegating non-price competition to one footnote: "Sellers 
with market power also may lessen competition on dimensions other than price, such 
as product quality, service, or innovation."). 

63 See, e.g., Jay Ezrielev & Janusz A. Ordover, The 2010 Horizontal Merger 
Guidelines: A Static Compass in a Dynamic World?, ANTITRUST SOURCE, Oct. 2010, at 
1; J. Thomas Rosch, Commissioner, Fed. Trade Comm'n, The Next Challenges for 
Antitrust Economists, Remarks at the NERA 2010 Antitrust & Trade Regulation 
Seminar (July 8, 2010), available at 


long-term economic growth, 64 but antitrust law has ossified 
around static price competition. 65 

Consequently, competition, while ubiquitous, can take 
different forms. Market participants compete to secure greater 
monetary profits. Sycophants in authoritarian regimes compete to 
curry favor with superiors. So, the issue is not whether 
competition exists, but "what kind of competition should exist." 66 
Competition can occur: (i) on various dimensions (such as price, 
quality, service, variety, innovation) across markets; (ii) operating 
at different levels of efficiency; (iii) with different levels of product 
differentiation, entry barriers, and transparency; (iv) at different 
stages of the product life cycle; and (v) with different demands for 
technological innovation. But while competition is ubiquitous, 
economists, policymakers and scholars have not agreed upon a 
theory of competition. 

II. Re-examining the Assumptions Underlying 
Competition and Competition Law 

As Part I discusses, competition has multiple meanings. This 
Part explores one reason why we have not arrived at one 

64 Thomas O. Barnett, Assistant Att'y Gen., Antitrust Div., U.S. Dep't of Justice, 
Competition Enforcement in an Innovative Economy 4-5, Remarks at the 4th Annual 
Competition Policy Conference (June 20, 2008) (quoting Robert M. Solow, Prize in 
Economic Sciences in Memory of Alfred Nobel 1987: Growth Theory and After (Dec. 8, 
available at 

65 J. Thomas Rosch, Commissioner, Fed. Trade Comm'n, Promoting Innovation: 
Just How "Dynamic" Should Antitrust Law Be?, Remarks Before the USC Gould 
School of Law 2010 Intellectual Property Institute (Mar. 23, 2010), available at (observed how antitrust "has 
historically focused more on static than dynamic analysis"); see also Michael E. Porter, 
Competition and Antitrust: A Productivity -Based Approach, in UNIQUE VALUE: 

Competition Based on Innovation: Creating Unique Value for Antitrust, the 
Economy, Healthcare, Education and Beyond 154, 157 (Charles D. Weller ed., 

2004) ("While protecting short-run consumer welfare measured by price-cost margins is 
. . . important, . . . productivity growth through innovation, where innovation is defined 
broadly to include not only products, but also processes and methods of management . . 
. [are] the single most important determinant of long-term consumer welfare and a 
nation's standard of living."). 

66 LUDWIG VON MlSES, BUREAUCRACY 86 (Bettina Bien Greaves ed., Liberty Fund 
2007) (1944). 




satisfactory theory of competition. Any theory of competition 
depends on its premises, the validity of which depends on the 
context. Among the assumptions in any theory of competition are: 
(i) the rationality of the market participants; (ii) the amount of 
information they have; (hi) the transaction costs and the speed of 
transactions; (iv) the degree to which market participants act 
independently of one another and care about the interests of third 
parties; and (v) how formal rules and informal social, ethical, or 
moral norms affect the market participants' behavior. 

This article focuses on one important assumption, namely the 
extent to which firms, consumers, and the government are 
rational and act with perfect willpower. 67 In relaxing this 
assumption, one's conception of competition changes. Firms can be 
relatively more or less rational than consumers in displaying the 
biases and heuristics identified in the behavioral economics 
literature. Accordingly, our conception of competition can vary 
under the following four scenarios: 


Bounded Rational 

Firms, Rational 




Bounded Rational 



As economist Douglass North observed, "The government is 
not a disinterested party in the economy." 68 Consequently, for 
each scenario, this Part examines the policy implications if the 
government is either relatively more or less rational than 
consumers and firms. 

Several caveats are necessary. First, this article simplifies by 
examining consumers' and firms' rationality. One can extend the 
analysis to the rationality of intermediaries (e.g., suppliers, 
wholesalers, and retailers), and firms as buyers and consumers as 

67 For the normative and descriptive shortcomings of the third prong of rational 
choice theory, namely individuals pursue solely their economic self-interest, see Stucke, 
supra note 48, at 907-17. 

68 NORTH, supra note 41, at 67. 


sellers of services. Second, it is an oversimplification to say that 
millions of consumers and firms are either rational or bounded 
rational. Under any scenario, some market participants will be 
relatively more rational and have greater willpower than others. 
Bounded rationality and willpower can increase or decrease over 
time. People at any moment can act "more or less rationally 
depending on a host of situational, emotional, and other 
contingent influences." 69 Nor is behavior consistent. People can 
behave differently depending on their gender 70 or situational 
factors, such as whether they are alone or in groups. 71 Third, 
firms as institutions can be bounded rational, although in 
different ways and degrees than consumers. Firms, at times, can 
minimize individual biases, but at other times (such as cults, 
mobs, and "groupthink" 72 ) can displace independent thinking. 

Finally, in mapping each scenario, this article first examines 
competition using the interaction of firms and consumers, and 
then introduces the rationality of the government in discussing 
the policy implications. This article's baseline is a free-market 
economy. With a centrally-planned economy, the analysis begins 
by examining the rationality of the government relative to private 
firms and consumers. With these caveats in mind, the purpose 
here is to explore generally how our theory of competition changes 
when relaxing one key assumption. 

III. Four Scenarios of Competition and Their Policy 


A. Scenario I: Both Firms and Consumers Are Rational 

The first scenario reflects neoclassical economic theory and 
competition policy today. A perfectly competitive market assumes 

69 Donald C. Langevoort, The Behavioral Economics of Mergers and Acquisitions, 
12 TENN. J. BUS. L. 65 (2011), available at 

70 See, e.g., Jeff Sommer, How Men's Overconfidence Hurts Them as Investors, N.Y. 
TIMES, Mar. 14, 2010, at BU4. 

71 See Philip Zimbardo, The Lucifer Effect (2008). 

72 Robert S. Baron, So Right It's Wrong: Groupthink and the Ubiquitous Nature of 
Polarized Group Decision Making, in 37 ADVANCES IN EXPERIMENTAL SOCIAL 
PSYCHOLOGY 219 (M.P. Zanna ed., 2005). 


transparent prices, highly elastic demand curves, easy entry and 
exit, and perfectly informed, rational profit- maximizing producers 
and consumers. 73 In this scenario, price equals marginal cost. 
Market forces will deliver the efficient level of outputs with the 
most efficient techniques, using the minimum quantity of 
inputs. 74 

But perfect competition, critics have long argued, cannot 
serve as the policymaker's conception of competition. 75 First, as 
the Chicago School jurist Richard Posner recognized, "No market 
fits the economist's model of perfect competition." 76 Second, 
perfect competition is inconsistent with our real world view of 
competition, which over the past century has increasingly focused 
on productive and dynamic efficiencies. 77 Imagine the reaction in 
an Ivy-League MBA program, where perfect competition is the 
idealized end-state. If true, perfect competition would render the 
students' services and future employers' products as fungible and 
their high tuition unnecessary. Instead, for MBA students, 
competition "is a perpetual flight from the zero-profit abyss." 78 

73 See BLACK, supra note 58, at 348. 

74 See Paul A. Samuelson & William D. Nordhaus, Economics 106-41 (15th ed. 


75 See Blaug, supra note 56, at 39; HAYEK, supra note 60, at 96; McNulty, supra 
note 21, at 641; Park, supra note 21, at 349; see generally JOSEPH A. SCHUMPETER, 

Capitalism, Socialism and Democracy (3d ed. 1942). 

76 FTC v. Elders Grain, Inc., 868 F.2d 901, 907 (7th Cir. 1989); accord United 
States v. Realty Multi-List, Inc., 629 F.2d 1351, 1368 (5th Cir. 1980) ("Perfect 
competition is a theoretical concept; all markets are subject to varying degrees of 
imperfections . . . .") (quoting Arthur D. Austin, Real Estate Boards, and Multiple 
Listing Systems as Restraints of Trade, 70 COLUM. L. REV. 1325, 1353 (1970)); 
Antitrust Modernization Comm'n, Report and Recommendations 2 (2007), 
available at 
report.pdf ("[T]he real world contains very few such markets."). 

77 Vickers, supra note 20, at 7; see also Douglass C. North, Economic Performance 
Through Time, 84 AM. ECON. REV. 359, 359 (1994) ("Neoclassical theory is simply an 
inappropriate tool to analyze and prescribe policies that will induce development."); 
HAYEK, supra note 60, at 96 ("Advertising, undercutting, and improving 
("differentiating") the goods or services produced are all excluded by definition — 
'perfect' competition means indeed the absence of all competitive activities."); McNulty, 
supra note 21, at 649. 

78 MA. Adelman, Economic and Legal Concepts of Competition, 41 J. FARM ECON. 
1197, 1197 (1959); see also Mary Keeney et al., How do Firms Set Prices? Survey 
Evidence from Ireland 3 (May 2010) (Cent. Bank & Fin. Servs., Research Technical 
Paper No. 7/RT/10), available at 


Third, the model, which idealizes homogeneity in products and 
knowledge, is far from desirable. Who wants to live in a world 
where after providing homogenous goods and services, we drive 
homogenous cars to homogenous homes? 79 

In defense of perfect competition, the Chicago School 
economist George Stigler said that any concept to be useful in 
scientific analysis must be abstract: "[I]f a science is to deal with a 
large class of phenomena, clearly it cannot work with concepts 
that are faithfully descriptive of even one phenomenon, for then 
they will be grotesquely undescriptive of others." 80 Under his 
logic, zoologists could not distinguish among Alaskan Hares 
(Lepus othus), Arctic Hares (Lepus arcticus), and Black-tailed 
Jackrabbits (Lepus calif ornicus) . Zoologists simply would call 
them collectively as creatures that hop. Moreover, if a zoologist 
calls these creatures Alaskan Hares, she is correct at least 
sometimes (when a Lepus othus hops by her). But if an economist 
describes all competition as perfect competition, she is always 
wrong. Perfect competition does not embrace or represent any 
form of actual competition. It is akin to the Easter Bunny. 

An economic model can assume idealized conditions: market 
participants are rational with perfect knowledge of the conditions 
of supply and demand. Under these conditions, market 
participants "are supposed to know absolutely the consequence [s] 
of their acts when they are performed, and to perform them in the 
light of the consequences." 81 But since perfect competition is 

documents/7RTl0.pdf (finding that autonomous price setting prevails when a firm 
considers competition to be absent, the most common approach in setting price is based 
on firms' costs and self-determined profit margin, and only one-third of firms set price 
primarily by following that of their closest competitor). For an excellent recent 
discussion of this, see Deven R. Desai & Spencer Waller, Brands, Competition, and the 
Law, 2010 BYUL. REV. 1425. 

79 One example was the Cultural Revolution in China where "[a]ny form of 
personal taste in clothing was out of bounds — women wore uniformly flat heels and 
most people donned Red Guard-style green uniform jackets, baggy trousers and caps, 
with a badge of the Chairman [Mao] on the tunic pocket." JONATHAN FENBY, THE 
Penguin History of Modern China: The Fall and Rise of a Great Power 1850- 


Last Revolution 116 (2006). 

80 Stigler, supra note 21, at 17. 

81 Id. at 12 (quoting FRANK KNIGHT, RISK, UNCERTAINTY AND PROFIT (1921)). 


neither descriptive nor normative, it is of little utility in dealing 
with day-to-day antitrust issues. 

The next gradation is to assume rational actors with 
incomplete knowledge. Some information is unobtainable. Other 
information, while obtainable, is too costly to procure. 82 In this 
market economy, the Austrian School economist Ludwig von 
Mises observed that rational consumers, not firms, should be 
supreme. In their purchasing behavior, consumers ultimately 
determine "what should be produced and in what quantity and 
quality." 83 Mises, in his belief of consumer sovereignty, was 
skeptical about the evils of private monopolies — rational 
consumers with willpower often can take care of themselves in the 
marketplace. But this is not always true. 84 Imperfect information 
and informational asymmetries, for example, can lead to "lemon" 
markets where dishonest dealers for goods or services drive out 
honest dealers, 85 and thereby inhibit innovation. 

The trickier aspect, as the next three scenarios address, is 
the descent to bounded rational actors with imperfect willpower, 
who act with incomplete knowledge. 

82 William J. Kolasky & Andrew R. Dick, The Merger Guidelines and the 
Integration of Efficiencies into Antitrust Review of Horizontal Mergers, 71 ANTITRUST 
L.J. 207, 250 (2003) ("Rational consumers and producers will invest in becoming 
informed only up until the point where the marginal cost of information equals its 
marginal value."). 

83 MISES, supra note 66, at 17. 

84 See, e.g., Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 477- 
78 (1992); Queen City Pizza, Inc. v. Domino's Pizza, Inc., 124 F.3d 430, 446 n.4 (3d Cir. 
1997) (Lay, J., dissenting) ("Kodak is merely a concession to fact that markets do not 
always work perfectly, and sometimes, but not always, these [information] 
imperfections can create sufficient market power to justify possible antitrust 
liability."); see also Robert H. Lande, Chicago Takes It On The Chin: Imperfect 
Information Could Play A Crucial Role In The Post-Kodak World, 62 ANTITRUST L.J. 
193, 195 (1993) ("Another important lesson of Kodak is that imperfect information can 
be a crucial factor in defining relevant markets."). 

85 See FTC v. Winsted Hosiery Co., 258 U.S. 483, 494 (1922) ("The honest 
manufacturer's business may suffer, not merely through a competitor's deceiving his 
direct customer, the retailer, but also through the competitor's putting into the hands 
of the retailer an unlawful instrument, which enables the retailer to increase his own 
sales of the dishonest goods, thereby lessening the market for the honest product."); 
George A. Akerlof, The Market for "Lemons": Quality Uncertainty and the Market 
Mechanism, 84 Q.J. ECON. 488, 495 (1970) (explaining that the cost of dishonesty 
includes "loss incurred from driving legitimate business out of existence"). 


1. Scenario Fs Policy Implications Assuming the Government Is 


A trinity of rational firms, consumers, and government 
paradoxically can justify either limited government or a centrally- 
planned economy. 86 As Stigler observed, a "perfect market may 
also exist under monopoly." 87 Logically monopolies can be private 
or government enterprises. If the latter, a state planner could 
model scenarios using the hypothetical profit-maximizer and 
centrally plan a similar outcome. Because rational profit- 
maximizing behavior is predictable, a temptation exists to nudge 
competition closer to perfect competition under "the guiding hand 
of some elite corps of governmental and non-governmental policy- 
makers." 88 

On the other hand, the stronger the presumption of 
rationality, the laissez-faire argument goes, the more likely the 
market is perceived in becoming efficient, and the less need for 
governmental regulation. 89 Generally, rational market 
participants acting with the optimal amount of information in 
markets with no negative externalities, do not need much 
governmental protection. 90 Transactions are presumably mutually 
beneficial: market participants contract to further their interests. 
The government perhaps can facilitate competition by reducing 
the market participants' transaction costs (such as providing a 
model contract and well-functioning judiciary system) or by 
lowering the participants' search and information costs (such as 

86 See John Cassidy, How Markets Fail: The Logic of Economic Calamities 59 

(2009) (discussing Oskar Lange's same observations on a centrally-planned economy 
and perfect competition). 

87 Stigler, supra note 21, at 14. 

88 Harlan M. Blake & William K. Jones, In Defense of Antitrust, 65 COLUM. L. REV. 
377, 378 (1965). 

89 See Town Sound & Custom Tops, Inc. v. Chrysler Motors Corp., 959 F.2d 468, 
485 n.23 (3d Cir. 1992) ("Most of the work of 'Chicago School' theorists has centered on 
the general proposition that significant economic harm cannot occur (and hence the 
antitrust laws should not interfere) in competitive markets."); Michael A. Salinger, 
Behavioral Economics, Consumer Protection, and Antitrust, 6 COMPETITION POL'Y Int'L 
65, 68 (2010). 

90 See JOHNSON & KWAK, supra note 7, at 69. 


combating fraud). 91 But the stronger the rationality presumption, 
the more likely the government, subject to rent-seeking, is 
perceived to impede efficiency. 92 

Even in Scenario I, it does not follow that the government 
does little. First, the government must address the commonly 
identified types of market failure under neoclassical economic 
theory, such as: (i) the sustained exercise of market power; 93 (ii) 
externalities; 94 (hi) public goods; 95 and (iv) significant 
informational asymmetries or uncertainty. 96 So, the rational 
government can increase price transparency (by restricting 
competitors' concerted efforts to reduce it or mandating public 
disclosures), internalize negative externalities (such as imposing 
on polluters a carbon tax), prosecute anticompetitive restraints of 
trade (such as price-fixing cartels or monopolist's efforts to 
unfairly increase rivals' costs or deter entry), and enjoin mergers 
to monopoly. 

Second, competitive markets do not always yield the best or 
desired outcome. "It is not a correct deduction from the Principles 
of Economics that enlightened self-interest always operates in the 
public interest." 97 Unbridled capitalism, Professors Akerlof and 
Shiller write, "does not automatically produce what people really 
need; it produces what they think they need, and are willing to 

91 See generally Maurice E. Stucke, How Do (and Should) Competition Authorities 
Treat a Dominant Firm's Deception?, 63 SMU L. REV. 1069 (2010). 

92 See, e.g., Avinash Dixit, In Honor of Paul Krugman: Winner of the John Bates 
Clark Medal, 7 J. ECON. PERSP. 173, 182 n.7 (1993) ("[T]here is no market failure so 
bad that the U.S. government and political process could not do even worse."). 

93 CASSIDY, supra note 86, at 126. 

94 A.C. Pigou, The Economics of Welfare 192 (4th ed. 1962); Black, supra note 
58, at 168 (where the "cost or benefit arising from any activity which does not accrue to 
the person or organization carrying on the activity"). 

95 Francis M. Bator, The Anatomy of Market Failure, 72 Q.J. ECON. 351, 369 (1958) 
(whereby the payers for the goods cannot exclude the non-payers from consuming (or 
benefitting) from the goods (e.g., national defense)). 

96 Asymmetric Information Definition, EC0N0MIST.COM, 
economics-a-to-z#node-21529485 (defining asymmetric information as "[w]hen 
somebody knows more than somebody else"); see also Francois Moreau, The Role of the 
State in Evolutionary Economics, 28 CAMBRIDGE J. ECON. 847, 849 (2004). 

97 John Maynard Keynes, The End of Laissez-Faire 39 (1927); see also Stiglitz, 
supra note 2, at 273. 


pay for." 98 Competition can maximize output of products that 
eventually wipe out the economy." 

Third, the government must address behavior that is 
individually rational but collectively irrational. 100 In examining 
the financial crisis, for example, Posner described how rational 
self-interested behavior of "law-abiding financiers and consumers 
can precipitate an economic disaster." 101 Self-interest, for Posner, 
is a private virtue in that competition drives businesses to profit- 
maximization, which drives economic progress. 102 But competitive 
self-interested behavior, at times, is a public vice. An 
overleveraged financial institution can ignore the small 
probability that its risky conduct in conjunction with its 
competitors' risky conduct may bring down the entire economy. 
Each firm in pursuing its self-interest will incur greater leverage 
to maximize profits. 103 So, even for rational-choice theorists like 
Posner, the government must serve as a countervailing force to 
such self-interested rational private behavior by better regulating 
financial institutions. 104 

2. Scenario I's Policy Implications Assuming the Government Is 

Bounded Rational 

Rational firms and consumers often will be worse off when a 
bounded rational government seeks to regulate their competitive 
behavior. Market forces invariably would provide a more efficient 
or timely solution. 105 

98 AKERLOF & SHILLER, supra note 5, at 26. 

99 Id.; see also Anthony Faiola et al., What Went Wrong?, WASH. POST, Oct. 15, 
2008, at A01, available at 
/2008/10/14/AR2008101403343.html (noting several Clinton and Bush Administration 
officials' opposition to regulation of derivatives). 

100 CASSIDY, supra note 86, at 139-50, 309. 

101 Richard A. Posner, A Failure of Capitalism: The Crisis of '08 and the 
Descent into Depression 107 (2009); see also id. at 111-12; Cassidy, supra note 86, 
at 209-17. 

102 POSNER, supra note 101, at 107. 

103 See, e.g., CASSIDY, supra note 86, at 221-27. 

104 POSNER, supra note 101, at 106-07. 

105 Herbert Hovenkamp, The Antitrust Enterprise: Principle and Execution 

124 (2005) ("[M]arkets generally work well when left alone, [and] intervention is 


But one first must inquire why the government is less 
rational than the market participants. One theory is 
dispositional — the government attracts bounded rational 
employees, namely, as Mises called them, those "unfit to serve 
[their] fellow citizens," but who want to rule them. 106 But this 
assumes that civil servants' disposition differs from consumers' 
and firms'. Government workers, however, are also consumers 
(and former employees in private firms). Consequently, it is 
unlikely that civil servants are more rational in their private 
market transactions (or prior jobs) than in their government 

A second theory is that the bounded rationality is situational. 
Market forces provide greater incentives for private firms and 
consumers to improve their willpower and rationality. 107 In their 
work decisions, civil servants, in contrast, have weaker incentives 
to avoid mistakes because of political myopia, the lack of direct 
accountability to voters, and regulatory capture. Under this 
theory, attracting business executives to oversee government 
agencies, and promoting a revolving door between the government 
and private sector will not eliminate bounded rationality, as the 
situational forces remain. The bureaucracy is not structured to 
experiment for the purpose of maximizing profits, but for the 
employees, consistent with the rule of law, to "obey rules and 
regulations established by a superior body." 108 

Logically under this scenario, a bounded rational government 
should not be problematic for competition policy. There exists the 
risk that the government, captured by powerful interests, impedes 
competition. But rational citizens, recognizing this risk, would 
rely on structural, rather than behavioral, safeguards to prevent 
the concentration of power in either the government or 

justified only in the relatively few cases where the judiciary can fix the problem more 
reliably, more cheaply, or more quickly than the market can fix itself."). 

106 MlSES, supra note 66, at 75. 

107 See Edward L. Glaeser, Paternalism & Psychology, 73 U. CHI. L. Rev. 133, 140- 
41, 144-45 (2006) (modeling how consumers face stronger incentives to correct errors 
that directly impact their well-being than do government bureaucrats). 

108 MlSES, supra note 66, at 55. 


marketplace. 109 Accordingly, the demand for governmental 
antitrust services would diminish to the instances of sustained 
market failure, which market forces cannot correct. The bounded 
rational government would undertake measures (preferably 
structural) to prevent (or remedy) these market failures, under 
the careful guidance of rational voters. Otherwise, rational market 
participants in a well-functioning democracy would increasingly 
rely on market forces for the solution. 

B. Scenario II: Rational Firms and Bounded Rational 


If firms are relatively more rational than consumers, then 
firms can compete to exploit or help consumers with bounded 
rationality and willpower. Consumers with bounded willpower 
sacrifice their long-term interests (such as increased savings) for 
immediate consumption (and increased debt), 110 and display time- 
inconsistent preferences. 111 When the activity involves immediate 
costs and delayed benefits (e.g., exercising, studying), consumers 
procrastinate. 112 When the activity involves immediate benefits 

TO MERGER REMEDIES 7 (Oct. 2004), available at 
guidelines/205 108.pdf (stating that structural remedies in merger cases are preferred 
as "they are relatively clean and certain, and generally avoid costly government 
entanglement in the market"); Louis D. Brandeis, Address before the New England Dry 
Goods Association at Boston (Feb. 11, 1908), in The SOCIAL AND ECONOMIC VIEWS OF 
MR. JUSTICE BRANDEIS 386, 386 (Alfred Lief ed., 1930) (observing how accepting 
mergers to monopolies with behavioral safeguards is like "surrendering liberty and 
substituting despotism with safeguards"). 

110 See Ned Welch, A Marketer's Guide to Behavioral Economics, McKlNSEY Q., Feb. 
2010, available at 

111 See Samuel M. McClure et al, Separate Neural Systems Value Immediate & 
Delayed Monetary Rewards, SCI., Oct. 15, 2004 ; at 504 (noting how if someone offered 
$10 today versus $11 tomorrow, a person would be tempted to choose the former; 
whereas if present choice involved a distant payoff ($10 in a year from now versus $11 
in a year and a day from now), same person would likely choose the latter). 

112 See generally Ted O'Donoghue & Matthew Rabin, Doing it Now or Later, 89 AM. 
ECON. REV. 103 (1999) (discussing welfare implications of a sophisticated person, who 
knows exactly what her future self s preferences will be, and naive person, who believes 
her future self s preferences will be identical to her current self s, not realizing that as 
she gets closer to executing decisions her tastes will change). 


and delayed costs, consumers find it harder to delay 
gratification. 113 

Behavioral economics, commented one of its pioneers, uses 
scientific methods to explore human behavior already known to 
"advertisers and used-car salesmen." 114 Rational firms manipulate 
consumption decisions by: 

(i) using framing effects and changing the reference point, 
such that the price change is viewed as a discount, rather 
than a surcharge; 115 

(ii) anchoring consumers to an artificially high suggested 
retail price, from which bounded rational consumers 
negotiate; 116 

(hi) adding decoy options (such as a restaurant's adding a 
higher priced wine) to steer consumers to higher margin 
goods and services; 117 

113 Id. at 109-10 (using example of seeing a mediocre film this weekend rather than 
waiting to see a better film released several weeks later). 

114 Gary Belsky & Thomas Gilovich, Why Smart People Make Big Money 
Mistakes — and How to Correct Them: Lessons from the New Science of 
Behavioral Economics 23 (1999) (quoting Amos Tversky). 

115 The way the choice is framed — such as a sure gain or avoiding a loss — can 
significantly impact the outcome of the consumers' choice. Daniel Kahneman, Maps of 
Bounded Rationality: Psychology for Behavioral Economics, 93 Am. ECON. REV. 1449, 
1458 (2003). Consumers may be less concerned with the elimination of a discount than 
a price increase (although both have the same net effect). Thus, deviations from the 
perceived reference point may be marked by asymmetric price elasticity: consumers 
may be more sensitive to (and angry about) price increases than when the 
manufacturer eliminates a discount or does not reduce prices during periods of 

116 In one experiment, MBA students put down the last two digits of their social 
security number (e.g., 14). The students, then participants, monetized it (e.g., $14), and 
then answered for each bidded item "Yes or No" if they would pay that amount for the 
item. The students then stated the maximum amount they were willing to pay for each 
auctioned product. Students with the highest ending SSN (80-99) bid the highest and 
those with the lowest SSN (1-20) bid the lowest, and those with highest-ending SSN 
bid 216 to 346 percent higher than students with low-end SSNs. DAN ARIELY, 

Predictably Irrational: The Hidden Forces That Shape Our Decisions 25-28 


117 Similarly, people "rarely choose things in absolute terms," but instead based on 
their relative advantage to other things. Id. at 2. As Ariely discusses, by adding a third 
more expensive choice, for example, the marketer can steer consumers to a more 


(iv) using the sunk cost fallacy to remind bounded rational 
consumers of the financial commitment they already made to 
induce them to continue paying installments on an item, 
whose value is less than the remainder of payments; 118 

(v) using the availability heuristic 119 to drive purchases, such 
as an airline travel insurer using an emotionally salient death 
(from "terrorist acts") rather than a death from "all possible 



(vi) taking advantage of the focusing illusion in 
advertisements (i.e., consumers predicting greater personal 
happiness from consumption of the advertised good and not 
accounting one's adaptation to the new product); 121 

(vii) giving the impression that their goods and services are of 
better quality because they are higher priced; 122 and 

expensive second choice. Id. MIT students, in one experiment, were offered three 
choices for the Economist magazine: (i) Internet-only subscription for $59 (sixteen 
students); (ii) print-only subscriptions for $125 (no students); and (hi) print-and- 
Internet subscriptions for $125 (eighty-four students). Id. at 5. When the "decoy" 
second choice (print-only subscriptions) was removed and only the first and third 
options were presented, the students did not react similarly. Id. at 5-6. Instead sixty- 
eight students opted for Internet-only subscriptions for $59 (up from sixteen students) 
and only thirty-two students chose print-and-Internet subscriptions for $125 (down 
from eighty-four students). Id. at 5-6. 

118 Lauren E. Willis, Decisionmaking and the Limits of Disclosure: The Problem of 
Predatory Lending: Price, 65 Md. L. REV. 707, 792 (2006). 

119 Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics 
and Biases, SCI., Sept. 27, 1974, at 1127 (noting situations where people assess the 
"frequency of a class or the probability of an event by the ease with which instances or 
occurrences can be brought to mind"). 

120 See generally Eric J. Johnson et al., Framing, Probability Distortions, and 
Insurance Decisions, 7 J. RISK & UNCERTAINTY 35 (1993). 

121 See BELSKY & GlLOVICH, supra note 114, at 225. 

122 Ariely, for example, conducted several experiments that revealed the power of 
higher prices. ARIELY, supra note 116, at 181-86. In one experiment, nearly all the 
participants reported less pain after taking a placebo priced at $2.50 per dose; when 
the placebo was discounted to $0.10 per dose, only half of the participants experienced 
less pain. Id. at 182-83. Similarly, MIT students who paid regular price for the "SoBe 
Adrenaline Rush" beverage reported less fatigue than the students who paid one-third 
of regular price for the same drink. Id. at 184-85. SoBe Adrenaline Rush beverage was 
next promoted as energy for the students' mind, and students after drinking the 
placebo, had to solve as many word puzzles as possible within thirty minutes. Students 
who paid regular price for the drink got on average nine correct responses, versus 


(viii) seeking to avoid price competition through branding. 123 

Credit card issuers, as one example, can capitalize on this 
bounded rationality and willpower in two ways. First, they can 
compete in ways to encourage consumers to charge more and incur 
greater debt (and maximize fees for the banks). 124 Second, credit 
card issuers can compete in helping consumers achieve their long- 
term interests by providing them with commitment devices. Every 
day, for example, people have part of their salaries automatically 
deducted into separate investment accounts, hire personal 
trainers to ensure they exercise, or set their clocks slightly fast. 
Banks accordingly can help consumers increase personal savings 
by offering them credit cards designed toward that end. 
Consumers in their dispassionate state, for example, can elect to 

students who paid a discounted price for the same drink got on average 6.5 questions 
right. Id. at 185-86. Similarly, according to researchers at the Stanford Graduate 
School of Business and the California Institute of Technology: 

[I]f a person is told he or she is tasting two different wines — and that one 
costs $5 and the other $45 when they are, in fact, the same wine — the part of 
the brain that experiences pleasure will become more active when the drinker 
thinks he or she is enjoying the more expensive vintage. 

News Release, Stanford Univ. News Serv., Price Tag Can Change the Way People 
Experience Win, Study Shows (Jan. 15, 2008), available at http://news-; see also Jonathan D. Glater & Alan 
Finder, In Tuition Game, Popularity Rises With Price, N.Y. TIMES, Dec. 12, 2006, at Al 
available at 
=print (discussing how Ursinus College, believing it was losing applicants because of 
its low tuition, raised its tuition and fees 17.6% in 2000 (but offered more financial aid) 
and received nearly 200 more applications the following year). 

123 Amos Tversky & Daniel Kahneman, Loss Aversion in Riskless Choice: A 
Reference-Dependent Model, 106 Q.J. ECON. 1039, 1054-58 (1991). A famous antitrust 
example is Clorox, whose bleach is chemically indistinguishable from rival brands. FTC 
v. Procter & Gamble Co., 386 U.S. 568 (1967). Nonetheless, Clorox invested millions of 
dollars in promoting its brand of bleach, and often charged a higher price for its bleach. 
One would think that a market, where one company sells a fungible chemically 
indistinguishable product at a price premium, would be attractive for potential 
entrants. But Procter & Gamble sought to purchase Clorox rather than enter the liquid 
bleach market independently. And Clorox bleach, according to the company website, 
remains today the U.S. industry leader with eight out of ten American households 
using the brand. About Clorox, CLOROX, (last visited 
Nov. 1, 2011). 

124 Oren Bar-Gill & Elizabeth Warren, Making Credit Safer, 157 U. PA. L. REV. 1, 56 
(2008) ("[D]ata on credit choice and use show that consumer mistakes cost hundreds of 
dollars a year per consumer."). 


cap subsequent credit card purchases for certain categories of 
goods or services (e.g., limiting spending on Starbucks coffee to $5 
per week). 125 

At times, exploiting irrationality benefits society. Rational 
firms can dampen investors' speculation (e.g., buying a company's 
stock on the hope that past price increases will continue with 
future price increases). Predictions markets can be construed as a 
form of behavioral exploitation. These predictions markets 
typically have a defined event (e.g., the winner of the U.S. 
presidential elections) and an end date when all bets are settled. 
Each market participant possesses partial knowledge. Moreover, 
some participants may be overly optimistic about the predicted 
outcome. Rational investors can exploit this irrationality, and the 
prediction market as a result can yield remarkably accurate 
predictions. 126 

Under Scenario II, firms may not always exploit consumers. 
Firms may be unable to identify those consumers whose biases, 
heuristics, and willpower make them more vulnerable. Identifying 
instances where bounded rationality can be exploited can be a 
business unto itself. 127 Rational firms can target bounded rational 
consumers by offering to help them with their earlier problems, 
such as selling their time shares, preventing home foreclosures, or 
improving their credit rating. 

But rational firms, even after identifying bounded rational 
consumers, cannot always exploit them. Consumers, recognizing 
their bounded rationality, can turn to rational advisors or 
consumer advocates (such as Consumers Reports). Many markets, 
unlike prediction markets, lack a defined end-point. A rational 
investor could "short" a company's stock to profit when the stock 

125 See Ron Lieber, Your Card Has Been Declined, Just as You Wanted, N.Y. TIMES, 
Aug. 13, 2010, at Bl, available at 

126 See Colin F. Camerer & Ernst Fehr, When Does "Economic Man" Dominate 
Social Behavior?, SCI., Jan. 6, 2006, at 47, 52; see also HAYEK, supra note 60, at 91. 

127 Bar-Gill & Warren, supra note 124, at 23-24. Credit rating agency Equifax, for 
example, advertises "'advanced profiling techniques' to identify people who show a 
'statistical propensity to acquire new credit' within [ninety] days." Brad Stone, Banks 
Mine Data and Woo Troubled Borrowers, N.Y. TIMES, Oct. 21, 2008, at Bl, available at 


price declines. 128 But rational traders often do not know when the 
speculative bubble will burst. Rational traders, due to investor 
pressure, can be subject to short-term horizons, and follow the 
herd for short-term gains. 129 Rational traders may also make more 
money by creating products that encourage, rather than deter, 
speculation. 130 

Alternatively, consumers, recognizing their bounded 
rationality, can turn to rational advisors or consumer advocates 
(such as Consumers Reports). Moreover the window for 
exploitation can be short-lived. Consumers can make better 
decisions as they gain experience, receive feedback quickly on 
their earlier errors, and discover some of the biases and heuristics 
in their earlier decisions. 131 

Scenario II competition presents other forms of market 
failure. One is systemic behavioral exploitation. 132 In competitive 
markets, one expects rational firms to inform bounded rational 
consumers of other firms' attempts to exploit them. Providing this 
information is another facet of competition — trust us, we will not 

128 See The Motley Fool, The Fool FAQ: Shorting Stocks, FOOL.COM, (last visited Nov. 1, 2011) ("An 
investor who sells stock short borrows shares from a brokerage house and sells them to 
another buyer. Proceeds from the sale go into the shorter's account. He must buy those 
shares back (cover) at some point in time and return them to the lender."). 

129 Andrei Shleifer & Robert W. Vishny, The Limits of Arbitrage, 52 J. FlN. 35 
(2007); see also James Mackintosh, Decoding the Psychology of Trading, FIN. TIMES, 
July 16, 2010, at 15 (discussing how hedge funds seek to exploit investors' bounded 
rationality by monitoring investor sentiments in the press), available at 
XV08i; CASSIDY, supra note 86, at 177-81. 

130 Andrei Shleifer, Inefficient Markets: An Introduction to Behavioral 

FINANCE 172 (2002) (citing several examples, including future contracts on tulips 
during the Tulipmania of the 1630s); CASSIDY, supra note 86, at 182-84. 

131 John A. List, Does Market Experience Eliminate Market Anomalies?, 118 Q.J. 
ECON. 41, 41 (2003). 

132 Max Huffman, Bridging the Divide? Theories for Integrating Competition Law 
and Consumer Protection, 6 EUR. COMPETITION J. 7, 17-18 (2010) (discussing how 
behavioral exploitation may produce longer-lasting consumer harm). Prof. Huffman's 
article prompted an interesting roundtable discussion among competition law lawyers, 
economists, and policy officials. Antitrust Marathon IV: With Authority — A Discussion 
Led by Philip Marsden and Spencer Weber Waller, 6 EUR. COMPETITION J. 1, 1-127 


exploit you. 133 But too frequently, rather than compete to build 
consumers' trust in their business, competitors engage in similar 
exploitation. 134 

Rational firms can compete in finding cleverer ways to 
attract and exploit bounded rational consumers. The U.K.'s Office 
of Fair Trading recently experimented with five common price 
frames: (i) "drip pricing," where a lower price is initially disclosed 
to the consumer and additional charges are added as the sale 
progresses; (ii) "sales," where the "sales" price is referenced off an 
inflated regular price (e.g., was $2, now $1); (hi) "complex pricing" 
(e.g., three-for-two offers), where the unit price requires some 
computation; (iv) "baiting," where sellers promote special deals 
with only a limited number of goods available at the discounted 
price; and (v) "time limited offers," where the special price is 

133 See SCFC ILC, Inc. v. Visa USA, Inc., 36 F.3d 958, 965 (10th Cir. 1994) ("If the 
structure of the market is such that there is little potential for consumers to be 
harmed, we need not be especially concerned with how firms behave because the 
presence of effective competition will provide a powerful antidote to any effort to exploit 
consumers." (quoting George A. Hay, Market Power in Antitrust, 60 ANTITRUST L.J. 
807, 808 (1992))). 

134 See, e.g., Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 474 
n.21 (1992) (noting that "in an equipment market with relatively few sellers, 
competitors may find it more profitable to adopt Kodak's service and parts policy than 
to inform the consumers"); FTC v. R.F. Keppel & Bro., Inc., 291 U.S. 304, 308, 313 
(1934) (finding that while competitors "reluctantly yielded" to the challenged practice 
to avoid loss of trade to their competitors, a "trader may not, by pursuing a dishonest 
practice, force his competitors to choose between its adoption or the loss of their 
trade"); Ford Motor Co. v. FTC, 120 F.2d 175, 179 (6th Cir. 1941) (Ford following 
industry leader General Motors in advertising a deceptive six-percent financing plan); 
Matthew Bennett et al., What Does Behavioral Economics Mean for Competition 
Policy?, 6 COMPETITION POL'Y INT'L 111, 118 (2010); Eliana Garces, The Impact of 
Behavioral Economics on Consumer and Competition Policies, 6 COMPETITION POL'Y 
Int'L 145, 150 (2010); Huffman, supra note 132. Antitrust scholar Robert Steiner, who 
was also the former president of the Kenner Products toy company, described his 
concerns about the industry self-regulation of toy commercials in the 1960s and 1970s. 
Originally favoring industry self-policing, he feared the greater anticompetitive 
consequences of deceptive advertising. Absent regulation, some toy manufacturers 
would air deceptive ads, which would pull down the toy industry. Unless his company 
matched "the exaggerations and sometimes the outright deceptions of certain 
competitors, our commercials might not be exciting enough to move our toys off the 
shelves." He foresaw bad commercials driving out the good ones, rendering television 
advertising relatively ineffective. Robert L. Steiner, Double Standards in the 
Regulation of Toy Advertising, 56 U. ClN. L. REV. 1259, 1264 (1988). 


available for a short period. 135 The OFT experiment found how 
firms can manipulate consumer consumption behavior and leave 
them worse off, especially under drip pricing and time-limited 
offers. Not surprisingly one sees exploitive "drip pricing" for 
airline tickets, 136 car rentals, 137 and prepaid telephone calling 
cards. 138 

To exploit consumers, rational firms can compete in ways to 
reduce price transparency and increase the complexity of their 
products (or product terms). 139 Credit cards are one example. A 
single credit card account can have multiple APRs for different 

135 office of Fair Trading, The Impact of Price Frames on Consumer Decision 

MAKING 6 (May 2010), available at 

136 The airlines are clever in their surcharges for pieces and weight of luggage, 
phone reservation fees, meals, beverages, headsets, extra legroom, etc. These extra fees 
often are not quoted in the initial price displayed to customers but later when 
consumers are completing their purchase. See e.g., Alex Altman & Kate Pickert, New 
Airline Surcharge: A Bag Too Far?, TIME, May 22, 2008, available at,8599, 1808804, OO.html; Jad Mouawad & 
Claire Cain Miller, Search for Low Airfares Gets More Competitive, N.Y. TIMES, Feb. 
10, 2011, at Bl, available at 

137 In re Dollar Rent-A-Car Sys., Inc., 116 F.T.C. 255 (1993) (requiring Dollar to 
disclose to consumers in its ads the existence of any mandatory fuel charges, airport 
surcharges or other charges not reasonably avoidable by consumers); In re Value Rent- 
A-Car, Inc., 116 F.T.C. 245 (1993) (same); In re Gen. Rent-A-Car Sys., Inc., Ill F.T.C, 
694 (1989) (requiring national car rental company to disclose charges that are 
mandatory or are not reasonably avoidable to every consumer that inquires about 
prices); In re Alamo Rent-A-Car, Inc., Ill F.T.C. 644 (1989) (settling charges that its 
operators failed to disclose to consumers the existence and amount of airport 
surcharges and mandatory fuel charges when consumers inquire about possible rental 
of Alamo's vehicles). 

138 Bennett et al., supra note 134, at 117. 

139 See, e.g., Xavier Gabaix & David Laibson, Shrouded Attributes, Consumer 
Myopia, and Information Suppression in Competitive Markets, 121 Q.J. ECON. 505, 
505-08 (2006); Edward J. Janger & Susan Block-Lieb, Consumer Credit and 
Competition: The Puzzle of Competitive Credit Markets, 6 EUR. COMPETITION J. 68, 71 
(2010) ("Price competition often takes the form of price concealment."); Bar-Gill & 
Warren, supra note 124, at 27-28; JOHNSON & KWAK, supra note 7, at 81, 108. Visa, 
MasterCard, and American Express, the DOJ recently alleged, sought to reduce price 
transparency for their credit card network services. Complaint for Equitable Relief for 
Violation of Section 1 of the Sherman Act, 15 U.S.C. § 1 at 2-3, United States v. Am. 
Express Co., No. CV 10-4496, 2010 WL 3836766 (E.D.N.Y Oct. 4, 2010) (alleging that 
merchants were prohibited from informing consumers of the merchants' cost in using a 
particular credit card network, or to encourage the customer to use a less costly credit 
card or payment method). Visa and MasterCard subsequently settled with the DOJ. 


types of credit extensions or that apply for limited time periods. 
General purpose credit card issuers can compete by reducing 
"front-end" costs, such as eliminating annual fees and 
substantially discounting initial interest rates. Consumers, ill- 
informed about the long-term costs of different credit cards, can 
make decisions on incidental benefits (such as receiving a T-shirt 
with the university logo when signing up for a credit card on a 
college campus). The credit card companies then overcharge the 
consumer on the less salient "back-end" costs, with higher late 
fees and penalties and over-the-credit-limit fees. 140 At times, 
consumers are disclosed the information but do not understand 
the key terms that affect the cost of using their credit card; at 
other times, consumers simply do not act on the information. 141 

Rational companies can exploit consumers' optimism bias. 
One former CEO, for example, explained how his credit card 
company targeted low-income customers "by offering 'free' credit 
cards that carried heavy hidden fees." 142 The former CEO 
explained how these ads targeted consumers' optimism: "When 
people make the buying decision, they don't look at the penalty 
fees because they never believe they'll be late. They never believe 
they'll be over limit, right?" 143 Consumers are overoptimistic on 
their ability and willpower to pay off the credit card purchases 
timely. They underestimate the costs of their future 
borrowings. 144 So, the optimistic consumers choose credit cards 
with lower annual fees (but higher financing fees and penalties) 

140 See Press Release, Bd. of Governors of the Fed Reserve Sys., Statement by 
Chairman Ben S. Bernanke (May 2, 2008), available at 

141 See JAMES M. LACKO & JANIS K. PAPPALARDO, Improving Consumer Mortgage 
Disclosures: An Empirical Assessment of Current and Prototype Disclosure Forms, 
FTC.GOV (June 2007), 

i« FRONTLINE: The Card Game, (Nov. 24, 2009), available at (interview with former 
Providian CEO Shailesh Mehta). 

143 Id. 

144 See Sha Yang et al., Unrealistic Optimism in Consumer Credit Card Adoption, 
28 J. ECON. PSYCHOL. 170 (2007); JOHNSON & KWAK, supra note 7, at 196-97. 


over better suited products (e.g., credit cards with higher annual 
fees but lower interest rates and late payment penalties). 145 

For other competitors, it may make sense to exploit consumer 
biases rather than incur the costs to debias. Suppose a credit card 
issuer incurs the cost to educate consumers of their bounded 
willpower and overconfidence. Other competitors can free-ride on 
the company's educational efforts and quickly offer similar credit 
cards with lower annual fees. Ultimately, such competition would 
reduce the credit card industry's profits, without offering any 
lasting competitive advantage to the first-mover. 146 Consequently, 
the industry is better off exploiting consumers' bounded 
rationality. Consumers, overconfident in their financial prowess, 
will not demand better-suited products. Firms have little financial 
incentive to help consumers make better choices. 147 Market 
demand, accordingly, will skew toward products and services that 
exploit or reinforce the consumers' bounded willpower and 

1. Scenario II's Policy Risks Assuming the Government Is 


Customers under this scenario may reign supreme (in 
choosing commitment devices to address their bounded rationality 
and willpower) or be exploited. So, in distinguishing between 
behavioral exploitation and when firms are helping bounded 
rational consumers, the government under Scenario II faces two 

One difficulty is that the government cannot necessarily rely 
on consumers' choices to infer their utility. Economists historically 
assessed people's preferences, not by their subjective beliefs or 
intentions, but by their actual choices. 148 But if heuristics and 

145 Bar-Gill & Warren, supra note 124, at 46. 

146 Id. at 8-9, 20-21. 

147 See, e.g., HORIZONTAL MERGER GUIDELINES, supra note 61, at § 7.2 (noting how 
the market is more vulnerable to coordinated conduct if a firm that first offers a lower 
price or improved product to customers will retain relatively few customers after its 
rivals respond). 

148 See Revealed Preference Definition, EC0N0MIST.COM, 
economics-a-to-z/r#node-21529779 (last visited Nov. 1, 2011) ("To model demand it is 
only necessary to be able to compare an individual's consumption decisions in 


biases systematically appear in consumer decision-making, then 
consumer choices do not necessarily reflect their actual 
preferences. 149 Bounded rational consumers can predict poorly as 
to what makes them happy. 150 At times, firms manipulate 
consumer choices through advertising and promotions. 151 

A second difficulty is that some sophisticated consumers, 
aware of their bounded rationality and willpower, will incur costs 
on commitment devices that could appear to a rational 
government as exploitative. Take for example Christmas club 
savings accounts. Bank customers deposit throughout the year 
into their Christmas accounts (which do not offer superior interest 
rates) and cannot withdraw the funds until the holidays. A 
rational government official could view Christmas accounts as 
exploitative. Customers get less (in terms of interest rate and 
liquidity). Banks get more (longer time horizon to use funds 
without risk of withdrawals). Rational consumers with willpower 
would chose risk-free illiquid funds with better yields (e.g., 
Certificates of Deposit) or keep the funds in their savings 
accounts. But Christmas accounts provide bounded rational 
consumers with a commitment device and divisibility (namely a 
separate account earmarked for Christmas shopping). 152 

situations with different prices and/or incomes and to assume that consumers are 
consistent in their decisions over time (that is, if they prefer wine to beer in one period 
they will still prefer wine in the next)."). 

149 See Bruno S. Frey & Alois Stutzer, What Can Economists Learn from Happiness 
Research?, 40 J. ECON. LITERATURE 402, 404-05 (2002); Daniel Kahneman & Alan B. 
Krueger, Developments in the Measurement of Subjective Well-Being, 20 J. ECON. 
PERSP. 3, 3-4 (2006) ("If people display bounded rationality when it comes to 
maximizing utility, then their choices do not necessarily reflect their 'true' preferences, 
and an exclusive reliance on choices to infer what people desire loses some of its 
appeal."); George Loewenstein & Peter A. Ubel, Hedonic Adaptation and the Role of 
Decision and Experience Utility in Public Policy, 92 J. PUB. ECON. 1795 (2008); Garces, 
supra note 134, at 148. 

150 See Daniel Kahneman & Richard H. Thaler, Utility Maximization & Experienced 
Utility, 20 J. ECON. PERSP. 221 (2006); Daniel Kahneman et al., Would You Be Happier 
If You Were Richer 1 ? A Focusing Illusion, SCI., June 30, 2006, at 1908; David A. 
Schkade & Daniel Kahneman, Does Living in California Make People Happy?, 9 
PSYCHOL. SCI. 345 (1998). 

151 See Derek Bok, The Politics of Happiness 76, 115-17, 206 (2010); John 
Kenneth Galbraith, The Affluent Society (2d ed. 1998). 

152 Richard H. Thaler, Mental Accounting Matters, in ADVANCES IN BEHAVIORAL 
ECONOMICS 75 (Colin F. Camerer et al. eds., 2004). 


Thus, a key issue under Scenario II is how the rational 
government identifies and responds to sustained behavioral 
exploitation. Authoritarianism and corporate autocracy are two 
worst-case scenarios. 

Under a market economy, consumers, through their informed 
economic decisions, should ultimately reign supreme. But if 
bounded rational consumers choose poorly, one danger is that the 
rational government by default decides for consumers. If 
consumers are bounded rational, the justification goes, markets 
are not functioning as efficiently as they could be; thus the state 
becomes the de facto guardian to protect its citizens from their 
irrationality. But a heightened concern about consumers' bounded 
rationality raises far greater social and political concerns over 
consumer sovereignty and "the intrusion of bureaucracy into all 
spheres of human life and activity." 153 The concern over 
behavioral exploitation can increasingly justify "the subordination 
of every individual's whole life, work, and leisure to the orders of 
those in power and office." 154 

In displacing individual autonomy, the rational government 
does not help consumers improve their willpower or rationality. 
Instead the government promotes learned helplessness. The 
government devotes greater energies to regulate marketplace 
behavior and displace the market's function in finding solutions 
for consumers' problems. 155 The government devises ways to 
improve consumers' diets and limit the consumption of unhealthy 
products. Next, the government encourages citizens to use their 
leisure time more productively, such as exercising and reading, 
rather than watching television. 156 

153 MlSES, supra note 66, at 14. 
i« Id. at 1 7. 

155 See J. Thomas Rosch, Commissioner, Fed. Trade Comm'n, Intel, Apple, Google. 
Microsoft, and Facebook: Observations on Antitrust and the High-Tech Sector, Address 
at the ABA Antitrust Section Fall Forum (Nov. 18, 2010), available at (recognizing "strong argument 
that having the state call the shots respecting consumer choice not only defeats the 
outcome that market forces would dictate, but also smacks of the kind of 'central 
planning' characteristic of a totalitarian state"). 

156 See MlSES, supra note 66, at 22. 


The concern is creeping authoritarianism. To protect its 
citizens, the government places greater restrictions on the 
citizens' ability to manage their affairs. A bureaucracy that exists 
to protect its bounded rational citizens does not have much 
incentive to improve the citizens' bounded rationality and 
willpower. The bureaucrats' livelihood, authority, and status 
depend on citizens remaining sufficiently irrational to justify the 
bureaucracy's existence. 157 Consumers are encouraged to register 
their complaints with the government, who intercedes on their 
behalf. The consumer complaints justify additional regulations to 
deter behavioral exploitation. Inevitably, the heavily regulated 
firms become de facto state enterprises. As Hayek observed, 
"planning leads to dictatorship, because dictatorship is the most 
effective instrument of coercion and the enforcement of ideals and, 
as such, essential if central planning on a large scale is to be 
possible." 158 

Under this worst-case scenario, economic competition ceases 
to be a concern. A centrally-planned economy headed by an 
authoritarian government eventually displaces experimentation 
by private firms and personal liberty. Thus some accept the cost of 
behavioral exploitation versus the greater costs of losing economic 
freedom to an increasingly authoritarian government. 159 

But if the government takes a laissez-faire approach and 
renounces any intention to regulate the market, this raises the 
other worst-case scenario, namely corporate autocracy. Here the 
outcome is equally anti-democratic. Economically powerful firms 
lobby the government to refrain from regulating the marketplace. 
While economically exploiting bounded rational consumers, firms 
advocate the virtues of consumer sovereignty under a laissez-faire 

157 NORTH, supra note 41, at 51-52. 

158 F.A. Hayek, The Road to Serfdom 70 (U. Chi. Press 2007) (1944). 

189 One need only look at China's dismal experience under Mao Zedong's 
authoritarian regime. FENBY, supra note 79, at 525 (besides the human losses and 
suffering, estimating the economic cost of the Cultural Revolution at the equivalent of 
$34 billion). In defending the economic liberalizations in China's Special Economic 
Zones, one Chinese official queried how many state officials would be willing to live in a 
zone where leftist policies would be applied through "total state planning, rationing 
and queuing for food, where foreign investment and foreigners would be banned, and 
inhabitants would not be allowed to travel or send their children abroad." Id. at 648. 


approach. Under this ideology, markets are presumably efficient 
(or heading toward greater efficiency). Once economic power and 
wealth are concentrated, the government and its competition 
policies are used to preserve the status quo. 160 The dominant 
firms maintain their power by redefining the goals of competition 
policy. Antitrust enforcement is directed against any potential 
countervailing power (such as using the antitrust laws to 
prosecute unions, which happened early in the Sherman Act's 
history 161 ). Antitrust policy characterizes concentration, even to 
the brink of monopoly, as beneficial. 162 Political and social 
concerns over dominant firms' influence and the effect of their size 
on the economy as a whole are dismissed as ill-founded fears over 
bigness and prosperity. These non-economic antitrust goals are 
deemed out of touch with the latest economic thinking, premised 
on rational choice theory. 163 Once economic and political power is 
consolidated, monopolies and cartels can become "governmental 
instrumentalities to achieve political ends." 164 Citizens are denied 
the right to use the democratic process to protect them; instead 

160 Industries in pre-war Germany, for example, enlisted the state through 
compulsory cartel laws to complete their market power. Maurice E. Stucke, Should the 
Government Prosecute Monopolies?, 2009 U. ILL. L. REV. 521-25 (providing examples); 
John M. Kleeberg, German Cartels: Myths and Realities 2 (N.Y.U Working Paper), 
available at 
German_Cartels.pdf (estimating that 550 to 600 German cartels existed in 1911, about 
1,000 in 1922; 1,500 by 1933; and 1,800 by 1938); HAYEK, supra note 158, at 93-94; see 
also JOHNSON & KWAK, supra note 7, at 6 (discussing financial industry). 

161 The eighth federal antitrust action brought by the United States was against 

Summary of Cases Instituted by the United States 1890-1951, at 69 (1952). The 
United States prosecuted numerous unions and union officials. Id. at 459-60 (index of 
cases against unions); see also PAUL E. HADLICK, CRIMINAL PROSECUTIONS UNDER THE 
SHERMAN ANTI-TRUST ACT 140 (1939) (observing that the first persons to serve jail 
sentences resulting from Sherman Act violations were Eugene V. Debs and others, 
stemming from the Pullman strike of 1894). 

162 Verizon Commc'n Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407 
(2004) (praising monopoly profits as "an important element of the free-market system," 
in serving as an inducement to "attractQ 'business acumen' in the first place" and 
engage in "risk taking that produces innovation and economic growth"). 

163 Darren Bush, Too Big to Bail: The Role of Antitrust in Distressed Industries, 77 
ANTITRUST L.J. 277, 281-91 (2010). 

164 John H. Crider, Roosevelt Calls for Cartels Curb: In Letter to Hull He Says Types 
of 'Trusts' Used by Reich Must Be Ended, N.Y. TIMES, Sept. 9, 1944, at Al (quoting 
President Roosevelt). 


they navigate the market's dark alleyways, hoping that little 
economic harm comes to them. 

2. Scenario IFs Policy Risks Assuming the Government Is 
Bounded Rational 

The prospect of bounded rational consumers and government 
raises several additional policy risks. One risk is that competitors 
may use consumer protection as a pretext for their anticompetitive 
restraints. To "protect" consumers from making irrational 
decisions, competitors agree to compete only along some 
parameters, such as quality or service, rather than price. In 
National Society of Professional Engineers v. United States, for 
example, the competing engineers refused "to discuss prices with 
potential customers until after negotiations . . . resulted in the 
initial selection of an engineer." 165 The society claimed that if 
engineers discussed prices at the onset with prospective clients, 
low bids would result. This in turn would tempt individual 
engineers to do inferior work with consequent risk to public safety 
and health. The engineers' behavior, when characterized 
favorably, was paternalistic. Customers, the engineers argued, 
could not account all the variables involved in the projects' actual 
performance. 166 The Supreme Court rejected the engineers' 
justification. 167 But the bounded rational government, assuming 
that bounded rational consumers choose poorly, might accept it. 
The rational competitors may also enlist the government to 
enforce their cartel. 168 

im 435 U.S. 679, 692 (1978). 

166 Id. at 694 (engineers arguing that customers could not intelligibly decide 
whether its "interest in quality — which may embrace the safety of the end product — 
outweighs the advantages of achieving cost savings by pitting one competitor against 

167 Id. at 695 (recognizing its inability (and its lack of authority under the Sherman 
Act) to weigh the loss of price competition with the public benefit of preventing inferior 
engineering work and insuring ethical behavior, and characterizing engineers' 
justifications as "nothing less than a frontal assault on the basic policy of the Sherman 
Act"); see also FTC v. Ind. Fed'n of Dentists, 476 U.S. 447, 463 (1986) (rejecting defense 
that in competitive information market consumers will "make unwise and even 
dangerous choices"). 

168 An agency empowered by the government to regulate an industry can be more 
effective than a private cartel in maintaining a cartel. In United States v. Kentucky 


Another policy risk arises from the overconfidence bias. 
Citizens are overconfident in the government's ability to regulate 
the market for abuses. 169 The bounded rational government is 
overconfident in its citizens' ability to fend for themselves 170 and 
the ability of markets to self-correct. 

A third policy risk is that the bounded rational government 
causes greater harm in protecting bounded rational consumers. 
For example, after a recent disaster, bounded rational consumers 
and the government under the availability heuristic would 
overestimate the probability of that disaster recurring. The 
government overregulates the industry, while not addressing 
other less salient dangers that actually cause greater harm. 171 
Even without the government's help, bounded rational consumers 

Real Estate Commission, the defendant served as the sole licensing authority for the 
state's real estate brokers. Complaint at 12, United States v. Kentucky Real Estate 
Comm'n, No. 3:05CV188-H (W.D. Ky. Mar. 31, 2005), available at Four of the five commissioners 
were, as required by statute, active real estate brokers. The defendant banned brokers 
from offering homebuyers a cash rebate, such as $1,000, or an inducement, like a free 
television, if the buyer used that broker. To enforce its anticompetitive rebate ban, the 
defendant investigated alleged violations, asked real estate brokers to inform it when 
any competing brokers offered rebates or other inducements, and took disciplinary 
action against brokers who offered customers rebates or other inducements, including 
suspending or revoking brokers' licenses, imposing monetary fines, issuing reprimands, 
and requiring completion of additional academic credit hours. Id. at 33. 

169 See Fannie Mae, The Growing Demand for Housing: 2002 Fannie Mae 

NATIONAL HOUSING SURVEY 9 (2002), available at 

no p or example, the Federal Trade Commission under the Reagan Administration 
limited Section 5 liability of unfair practices to injuries, which consumers could not 
reasonably have avoided. FTC Policy Statement on Unfairness, Appended to In re Int'l 
Harvester Co., 104 F.T.C. 949, 1070 (1984). As the FTC stated: 

Normally we expect the marketplace to be self-correcting, and we rely on 
consumer choice — the ability of individual consumers to make their own 
private purchasing decisions without regulatory intervention — to govern the 
market. We anticipate that consumers will survey the available alternatives, 
choose those that are most desirable, and avoid those that are inadequate or 

Id. The FTC Statement however recognized some forms of behavioral exploitation, such 
as when firms "exercise undue influence over highly susceptible classes of purchasers, 
as by promoting fraudulent 'cures' to seriously ill cancer patients." Id. 

171 Timur Kuran & Cass R. Sunstein, Availability Cascades and Risk Regulation, 51 
Stan. L. Rev. 683, 747-48 (1999). 


can overreact, based on how the issue is framed 172 or to rumors, 
causing social losses, a concern China's authorities recently 
raised. 173 

3. Policy Alternatives under Scenario II 

Consumers can be worse off when the government (whether 
rational or bounded rational) acts or does not act. So, what should 
the government do, especially if the extent of its bounded 
rationality is unknown? 

The government has several options, some less paternalistic 
than others, to deter behavioral exploitation while preserving 
economic liberty and leaving room for innovation that benefits 

One well-known behavioral remedy is for the government to 
alter existing, or create new, default rules. 174 One recent issue 
was that banks were exploiting credit card consumers' propensity 
to overspend their assigned credit limits. Suppose the consumer 
with bounded willpower sees designer-label shoes on the discount 
rack. The consumer has $20 of available credit; the shoes cost 
$100. The bank permits the consumer to charge the shoes, but 
extracts a high fee. 175 Overdraft fees are also an issue with debit 

172 See Marwan Sinaceur et al., Emotional and Deliberative Reactions to a Public 
Crisis: Mad Cow Disease in France, 16 PSYCHOL. SCI. 247 (2005), available at The field 
study showed how French newspaper articles more often featured the emotional label 
"Mad Cow" disease than the more abstract and scientific label (Creutzfeldt-Jakob 
disease, CJD, or bovine spongiform encephalopathy, BSE). Beef consumption dropped 
"significantly when many articles mentioned the Mad Cow frame during the previous 
month, but was unaffected by the number of articles in the previous month that 
mentioned the scientific frames." Id. at 251. 

173 Hu Meidong & Peng Yining, Chinese Lacking Scientific Literacy: Knowledge 
Crucial to Development and Stability, CHINA DAILY, Nov. 2, 2010, at 4 (expressing 
concern over a three hundred percent price increase of mung beans since April 2010 
after false claim that beans cure cancer). 

174 Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About 

HEALTH, WEALTH, AND HAPPINESS 78 (2008); Cass R. Sunstein & Richard H. Thaler, 
Libertarian Paternalism Is Not an Oxymoron, 70 U. CHI. L. Rev. 1159 (2003); Camerer 
et al., supra note 11, at 1211. 

175 Marcy Gordon, House Passes Credit Card Bill That Helps Consumers, 
HUFFINGTON POST (May 1, 2009), 
passes-credit-card-_n_194126.html. During the financial crisis, the major U.S. banks 


cards, where the consumer makes a purchase for an amount 
greater than the balance in the consumer's bank account. In 2009, 
consumers paid a record $38.5 billion in overdraft fees, nearly 
double the amount reported in 2000. 176 Ninety-three percent of 
the overdraft revenues came from about fourteen percent of U.S. 
bank accounts, with the larger banks charging the highest fees. 177 

Rather than prohibit outright over-the-limit fees or regulate 
the size of such fees, Congress in the Credit CARD Act of 2009 
chose a behavioral remedy and changed the default option. 178 
Before 2010, many banks automatically enrolled consumers in 
their over-the-limit plan. Under the Act, the credit card company 
cannot impose an over-the-limit fee for any extension of credit in 
excess of the previously-authorized credit limit unless the 
consumer expressly opts into the over-the-limit plan. 179 

For rational actors with perfect willpower, the default option 
should not affect the outcome. But the majority of surveyed 
participants in the Federal Reserve's testing, along with 
"consumer advocates, members of Congress, federal and state 

raised fees further. Eric Dash, Bank Fees Rise as Lenders Try to Offset Losses, N.Y. 
TIMES, July 2, 2009, at Bl, available at 

176 Saskia Scholtes & Francesco Guerrera, Banks in $38.5bn Windfall from Fees, 
FIN. TIMES, Aug. 10, 2009, available at 

177 Ron Lieber & Andrew Martin, The Card Game: Overspending on Debit Cards Is 
a Boon for Banks, N.Y. TIMES, Sept. 9, 2009, at Al, available at 

178 See Credit Card Accountability Responsibility and Disclosure Act of 2009, Pub. 
L. No. 111-24, § 102(a), 123 Stat. 1734, 1738-39 (2009) [hereinafter Credit CARD Act]. 
With respect to debit cards, the Board of Governors of the Federal Reserve System 
amended Regulation E to limit the ability of a financial institution to assess an 
overdraft fee for paying automated teller machine (ATM) and one-time debit card 
transactions that overdraw a consumer's account, unless the consumer affirmatively 
consents, or opts in, to the institution's payment of overdrafts for these transactions. 
New Overdraft Rules for Debit and ATM Cards, Bd. OF GOVERNORS OF THE FED. 
RESERVE SYS. (June 22, 2010), 

179 Credit CARD Act § 102(a), supra note 178. This provision, like many other 
provisions of the Act, took effect in February 2010. See id. at § 3, 123 Stat, at 1735. One 
year after the default option changed, "overlimit fees have virtually disappeared in the 
credit card industry." CARD Act Factsheet, CONSUMER FIN. PROT. BUREAU (Feb. 2011), 
[hereinafter CFPB Factsheet]. 


regulators, and the overwhelming majority of individual 
consumers who commented" on the proposed regulation urged the 
Board to set the default as consumers having to opt into the 
overdraft program rather than having to opt-out (which many 
banks preferred). 180 Default options have played an important role 
in diverse settings, 181 including class actions, 182 and will likely be 
contested in other areas. 183 

As a second option, the government can require consumers to 
choose among the options. The European Commission, for 
example, challenged Microsoft for bundling or tying its web 
browser, Internet Explorer, to its dominant client personal 
computer operating system, Windows. 184 Before the settlement, 
consumers who used Windows had Microsoft's Internet Explorer 
as their default web browser. Although consumers could download 
other browsers, many did not, a function not attributable 
necessarily to the superiority of Microsoft's browser but status quo 

180 See Electronic Funds Transfers. 12 C.F.R. Part 205 (2009), available at (Official staff commentary of the 
Board of Governors of the Federal Reserve System). 

181 See, e.g., Stefano DellaVigna, Psychology and Economics: Evidence from the 
Field, 47 J. ECON. LITERATURE 315, 322 n.ll (2009) (collecting studies on default 
options in retirement savings, contractual choice in health-clubs, organ donation, and 
car insurance plan choice); Eric J. Johnson et al., Defaults, Framing and Privacy: Why 
Opting In-Opting Out, 13 MARKETING LETTERS 5 (2003) (consent to receive e-mail 
marketing); C. Whan Park et al., Choosing Wliat I Want Versus Rejecting What I Do 
Not Want: An Application of Decision Framing to Product Option Choice Decisions, 37 

J. Marketing Res. 187 (2000) (car option purchases); Thaler & Sunstein, Nudge, 

supra note 174, at 129-30. 

182 European Consumer Consultative Grp., Opinion on Private Damages 

ACTIONS 4 (2010), available at 
ECCG_opinion_on_actions_for_damages_18112010.pdf (noting Europe's recent 
experience that the rate of participation in opt-in procedure for consumer claims was 
less than one percent, whereas under opt-out regimes, rates are typically very high 
(97% in the Netherlands and almost 100% in Portugal)). 

183 See Julie Brill, Commissioner, Fed. Trade Comm'n, Remarks at the Trans 
Atlantic Consumer Dialogue 4 (Apr. 27, 2010), available at (expressing dissatisfaction with 
the "traditional opt-out, 'notice and choice' model" that "inappropriately places the 
burden on consumers to read and understand lengthy, complicated privacy policies that 
almost no one reads, and no one understands"). 

is4 p r ess Release, European Comm'n, Antitrust: Commission Welcomes Microsoft's 
Roll-Out of Web Browser Choice (Mar. 2, 2010), available at 


bias. 185 As part of its settlement, Microsoft now provides 
consumers a Browser Choice Screen. Rather than having one 
Internet browser as the default, computer users must choose the 
browser they want from the competing web browsers listed on the 
screen. 186 

Third, the government can educate the consumers using 
framing under prospect theory 187 and the availability heuristic. 188 
To increase the salience of credit card finance charges, for 
example, the Credit CARD Act of 2009 requires a "Minimum 
Payment Warning." 189 The credit card consumer is told in the 

185 See Shane Frederick, Automated Choice Heuristics, in HEURISTICS AND BIASES: 

The Psychology of Intuitive Judgment 555 (Thomas Gilovich et al. eds., 2002) 

(summarizing experimental evidence of people preferring current options over other 
options to a degree that is difficult to justify). 

186 It is unclear how successful the settlement has been to date. On the one hand, 
Microsoft's share of the European browser market declined after the settlement — from 
44.9% in January 2010 to 39.8% in October 2010. In 2009, Microsoft's share declined by 
5.5 percentage points; in 2008, by 8 points. Kevin J. O'Brien, European Antitrust Deal 
With Microsoft Barely Affects Browser Market, N.Y.TlMES.COM (Oct. 10, 2010), 10/10/1 l/technology/lleubrowser.html?ref=business. So, the 
market share could have declined absent the remedy. On the other hand, absent the 
remedy, by enabling consumers to easily chose which browser they desire, increases 
the likelihood that the market share reflects more the consumers' informed choice, 
rather than the monopolist's. Emanuele Ciriolo, Behavioural Economics in the 
European Commission: Past, Present and Future, OXERA AGENDA, Jan. 2011, at 3, 
available at http://www.oxera. com/main. aspx?id=9324 (noting how twenty-five percent 
of the consumers who viewed the choice screen chose an alternative browser). 

187 See Daniel Kahneman & Amos Tversky, Prospect Theory: An Analysis of Decision 
Under Risk, 47 ECONOMETRICA 263 (1979). 

188 Camerer et al., supra note 11, at 1231 ("Since low probabilities are so difficult to 
represent cognitively, it may help to use graphical devices, metaphors (imagine 
choosing one ping-pong ball out of a large swimming pool filled with balls), or relative- 
odds comparisons (winning the lottery is about as likely as being struck by lightning in 
the next week)."). 

189 Credit CARD Act, supra note 178, at § 201(a). One year later, the Consumer 
Financial Protection Bureau reports that "70 percent of cardholders [surveyed] have 
noticed that monthly statements now contain information about the consequences of 
making only minimum payments" and "48 percent of consumers recall that their bill 
now tells them how much to pay each month in order to pay off the balance within 
three years." CFPB Factsheet, supra note 179. "Of the cardholders who have noticed at 
least one of the changes in their monthly billing statements, 60 percent say that their 
monthly statements are easier to read and understand than they were a year ago" and 
"31 percent of cardholders who recall seeing the new information on their statement 
report that this information has caused them either to increase the payments they 
make or to reduce their use of credit." Id. However, "32 percent of those who carry a 


monthly statement how paying only the minimum amount due 
will increase the amount of interest she pays and the time to 
repay the balance. At times, better disclosures entail providing 
less, but more important, information. 190 

A fourth option to deter behavioral exploitation is to set one 
option as the default but impose procedural constraints on opting 
out. 191 For example, the Credit CARD Act of 2009 sets as the 
default that "no credit card may be issued to, or open end 
consumer credit plan established by or on behalf of," consumers 
under the age of twenty-one. 192 To open a credit card account, 
those under twenty-one must: (i) have the signature of a cosigner, 
including the parent, legal guardian, spouse, or any other 
individual over twenty-one years old who has the means to repay 
(and be jointly liable for) the credit card debts; or (ii) submit 
financial information showing their independent means of 
repaying any obligation arising from the proposed extension of 
credit. 193 

A fifth option is to afford purchasers a cooling-off period. 
Consumers in an emotional, impulsive state can make unwise 
decisions that they later regret. 194 Federal and state laws along 
with regulations recognize this. 195 From a behavioral economics 
perspective, the effectiveness of cooling off periods is mixed. On 
the one hand, consumers, upon reflection, can reconsider a 

balance from month to month say they do not know how much interest they paid on 
their primary credit card last year." Id. 

190 LACKO, supra note 141 (finding that the current mortgage cost disclosures failed 
to convey key mortgage costs to consumers, and the tested disclosure prototype 
improved the surveyed consumers' understanding, especially for more complex loans). 

191 Sunstein & Thaler, Libertarian Paternalism Is Not an Oxymoron, supra note 
174, at 1189. Besides procedural constraints, they propose substantive constraints that 
allow people "to reject the default arrangement, but not on whatever terms they 
choose." Id. 

192 Credit CARD Act, supra note 178, at § 301. 

193 Id. 

194 See Samuel M. McClure et al, Separate Neural Systems Value Immediate & 
Delayed Monetary Rewards, SCI., Oct. 13, 2004, at 503-07; ARIELY, supra note 116, at 

195 See Rule Concerning Cooling-Off Period for Sales Made at Homes or at Certain 
Other Locations, 16 C.F.R. Part 429 (2011); Camerer et al., supra note 11, at 1241-44 
(collecting federal and state cooling-off statutes); see also Truth in Lending (Regulation 
Z), 12 C.F.R. § 226.15 (2011) (Regulation Z cooling-off period). 


purchase, especially one involving high-pressure sale tactics. On 
the other hand, the more time one has to complete a task, the 
behavioral economics literature suggests, the greater the 
likelihood one will not complete that task. 196 For example, a 
customer's likelihood of redeeming a rebate may be inversely 
proportional to the rebate period's length. 197 Consumers assume 
that they eventually will seek the "discount," but ultimately 

A sixth option is to impose a behavioral exploitation tax on 
the rational firm. 198 When the estimated social value of the 
rational firms' behavior is below its private value, the government 
can tax the rational firm the difference. The tax seeks to prevent 
the firms from unjustly enriching themselves from their 
behavioral exploitation. For example, revenues from payday 
lending that come from APRs above a certain level would be taxed 
at higher rates. Credit card revenues earned from late fees would 
be taxed at higher rates than revenue from annual fees. 

A seventh option is for the government to take preventive 
measures to help consumers debias themselves and improve their 
willpower. Here, the aim is to make consumers less susceptible to 
behavioral exploitation. 199 The government can increase: (i) the 
supply of debiasing methods (e.g., adding courses on financial 
literacy in high school (emphasizing the behavioral risks and 
investors' susceptibility to overconfidence bias 200 )); (ii) the demand 

196 See, e.g., Dan Ariely & Klaus Wertenbroch, Procrastination, Deadlines, and 
Performance: Self-Control by Precommitment, 13 PSYCHOL. SCI. 219, 219-24 (2002); 
Amos Tversky & Eldar Shafir, Choice Under Conflict: The Dynamics of Deferred 
Decisions, 3 PSYCHOL. SCI. 358 (1992). 

197 Matthew A. Edwards, The Law, Marketing and Behavioral Economics of 
Consumer Rebates, 12 STAN. J.L. Bus. & FIN. 362, 391-95 (2007); see also Virginia 
Postrel, The Gift-Card Economy, ATLANTIC (May 2009), 
(noting the longer the expiration period, the less likely one will redeem gift card). 

198 See Ted O'Donoghue & Matthew Rabin, Studying Optimal Paternalism, 
Illustrated by a Model of Sin Taxes, 93 AM. ECON. REV. 186 (2003). 

199 Gregory Mitchell, Libertarian Paternalism Is an Oxymoron, 99 Nw. U. L. REV. 
1245, 1264 (2005) (exploring how "the first approach of the libertarian central planner 
would be to debias individuals so that they can make their own rational decisions about 
which choices best promote their own welfare"). 

200 Financial literacy efforts have had mixed results. One study of Harvard 
undergraduate students and MBA students from Wharton, for example, found a "low 


for debiasing, such as imposing procedural constraints on 
consumer participation in high risk areas of behavioral 
exploitation, such as subprime lending, unless the consumer 
participated in an approved online course that outlines the 
material risks; and (hi) the opportunities to debias, such as 
facilitating timely feedback mechanisms to make consumers 
become aware of their errors and the costs of their poor choices, 
and strategies to avoid errors (e.g., providing employees who have 
not enrolled into a retirement plan a monthly reminder of how 
much money they lost to date in matching funds by not 
contributing to the 401(k), and an easy method to opt-in). The 
government can also provide consumers, if the market has not, 
commitment devices. 

An eighth option is to increase the firms' search costs of 
identifying potential victims. One resounding success of the 
Federal Trade Commission is enabling consumers to easily opt-out 
of all unwanted telephone solicitations. 201 The government, 
through a similar common listing service, can enable consumers to 
opt-out of home or mail solicitations (including credit card 
offerings) or easily block home-shopping cable stations. The 
government can increase consumers' privacy rights to make it 
harder for firms to identify especially bounded rational consumers 
through their purchasing behavior. 

Some argue that "[a]dvocating soft paternalism is akin to 
advocating an increased role of the incumbent government as an 
agent of persuasion." 202 Scenario II's policy risks indeed represent 
a balancing act. While government persuasion increases the risk 
of authoritarianism, government inaction carries the risks of 
behavioral exploitation and corporate autocracy. Moreover, anti- 

absolute level of financial sophistication" with subjects basing choices on normatively 
irrelevant mutual fund attributes. James J. Choi et al., Why Does the Law of One Price 
Fail? An Experiment on Index Mutual Funds 25 (Yale ICF Working Paper No. 08-14, 
Mar. 6, 2008), available at http://papers.ssrn. com/sol3/papers.cfm?abstractid=l 125023. 

201 See, e.g., Telemarketing Rules, 15 U.S.C. § 6102 (2006); National Do-Not-Call 
Registry, 16 C.F.R. § 310.4(b)(l)(iii)(B) (2011). As of September 30, 2008, over 172.5 
million telephone numbers were on the do-not-call list. See also Do-Not-Call 
Improvement Act of 2007, Pub. L. No. 110-187, 122 Stat. 633 (2008) (telephone 
numbers placed on the National Do-Not-Call-Registry can remain on it permanently). 

202 Glaeser, supra note 107, at 156. 


"soft" paternalism can itself be paternalistic. If most consumers 
(like those in the Federal Reserve's testing) prefer having the 
default as an opt-in (e.g., requiring consumers to opt into the 
banks' overdraft programs), then assuming that consumers are 
indeed sovereign, the banks should comply. If the banks, however, 
are unresponsive to consumer demand and require consumers to 
opt-out, why cannot citizens seek from their elected 
representatives to get what they want? It is hard to see why 
citizens, in the name of libertarianism, must continue to wait for 
their desired default option from an unresponsive market. 

Accordingly, under any conception of competition with 
bounded rational consumers, one cannot view antitrust and 
consumer protection as unrelated. Under Scenario II, both 
consumer protection and antitrust law promote the opportunity 
for informed consumer choices. Ideally, informed consumers 
choose among the innovating firms' solutions for their 
problems. 203 Given the importance of individual autonomy in 
overall well-being, the government must carefully delineate 
between behavioral exploitation and behavioral freedom, where 
firms help consumers address their bounded rationality and 
willpower. After all, it would be counterproductive if antitrust 
policy promotes diversity of products and services and the process 
of search and experimentation, while consumer protection law 
bans all products except the one the government believes is the 
best. Ideally, antitrust and consumer protection laws deter market 
failure (e.g., systemic behavioral exploitation) and ensure that 
consumers, once informed, can choose among products and 

203 Wolfgang Kerber, Competition, Innovation and Maintaining Diversity Through 
LIMITATIONS (Josef Drexl et al. eds., 2010), available at 


C. Scenario III: Bounded Rational Firms and Rational 


Here consumers are relatively more rational than firms in 
the industry. 204 Excessive optimism can have procompetitive 
benefits, such as the firms' willingness to innovate and enter new 
markets. 205 But excessive optimism can harm the firms and 
economy. Consumers, in response to the firms' behavior, ask, 
"What were they thinking?" One recurring theme in the business 
literature is how once mighty firms (e.g., the U.S. car 
manufacturers 206 ) lose sight of their customers' needs or are in 
denial. 207 

This Scenario helps explain why some corporate executives, 
with much to lose, risk criminal liability by fixing prices with their 

204 p or Scenarios III and IV, one must also distinguish between the firms' and 
economists' conception of rationality. See, e.g., Russell Pittman, Who Are You Calling 
Irrational? Marginal Costs, Variable Costs, and the Pricing Practices of Firms, U.S. 
Dep't of Justice, Antitrust Div. (Economic Analysis Group. Discussion Paper No. 09-3 
July 2009), available at (noting this 
disconnect as to pricing decisions). Some economists view marginal costs narrowly, and 
deem business executives who take fixed and sunk costs into account in their pricing 
decisions as naive. But as Pittman points out, in the long-run, a firm's revenues must 
cover not only its operating costs but its invested capital. Id. at 2. "Setting price equal 
to average variable cost, with no 'margin' for fixed costs, is a strategy for firms exiting a 
market, not for long-term survival." Id. at 5. Thus, a profit-maximizing firm produces 
where its MC (marginal cost) = AVC (average variable cost) + FC (fixed cost) / Q 
(quantity). Firms may also engage in other conduct that economists deem as 
"irrational," but which consumers deem as fair. Some economists are agnostic on price 
discrimination or believe that in certain instances it may be pro-competitive; ninety- 
one percent of individuals in one survey thought charging higher prices to those who 
are more dependent on the product was offensive. Daniel Kahneman et al, Fairness as 
a Constraint on Profit Seeking: Entitlements in the Market, 76 AM. ECON. REV. 728, 735 
(1986). So, even though firms could price discriminate, some may decline, so as to not 
offend their customers. 

205 See Don A. Moore et al., What Competition? Myopic Self-Focus in Market-Entry 
Decisions, 18 ORG. SCI. 440, 441-42 (2007); Langevoort, supra note 69, at 11. 

206 John E. Kwoka, Jr., The U.S. Industry Under Duress: Fit, or Finished?, 5 
Competition Pol'y Int'l 49 (2009). 

207 see, e.g., richard s. tedlow, denial: why business leaders fail to look 
FACTS IN THE FACE — AND WHAT TO DO ABOUT IT (2010); Strategic Decisions: When Can 
You Trust Your Gut?, McKlNSEY Q., Mar. 2010, available at http:// 


competitors; 208 are likely to advocate a merger; 209 are 
overconfident about a merger's likely efficiencies; 210 overvalue the 
purchased assets; 211 are overly confident or pessimistic about 
their chances of entering particular markets; 212 and consistent 
with the sunk cost fallacy, throw good money after bad in 
corporate projects. 213 

Professor Waller recently examined evidence from corporate 
finance that suggests entire categories of mergers are more likely 
to destroy, rather than enhance, shareholder value. 214 Among the 

208 Maurice E. Stucke, Am I a Price-Fixer? A Behavioral Economics Analysis of 

International Regulatory Movement (Caron Beaton- Wells & Ariel Ezrachi eds., 


209 Ulrike Malmendier, A "New" Paradigm in Corporate Finance: The Role of 
Managers and Managerial Biases, 4 NBER REPORTER 13, 15-16 (2010), available at (discussing correlation between 
overconfidence and acquisitions by cash-rich firms not dependent on external 

ABOVE THE ASHES (2005) (summarizing major failed mergers); Matthew T. Billett & 
Yiming Qian, Are Overconfident CEOs Born or Made? Evidence of Self Attribution Bias 
from Frequent Acquirers, 54 MGMT. SCI. 1037 (2008) (finding from sample of public 
acquisitions between 1985 and 2002 that CEOs who previously engaged in a successful 
acquisition appear to overly attribute their role in successful deals, leading to more 
deals even though these subsequent deals are value destructive). 

211 Mathew L.A. Hayward & Donald C. Hambrick, Explaining the Premiums Paid 
for Large Acquisitions: Evidence of CEO Hubris, 42 ADMIN. SCI. Q. 103, 122 (1997) 
(finding from empirical study of mergers over $100 million involving publicly traded 
firms over four year period that CEO hubris plays a substantial role in acquisition 
process and acquisitions tend to reduce shareholder wealth); see also RICHARD H. 

Thaler, Winner's Curse: Paradoxes and Anomalies of Economic Life 50-62 (1992) 

(discussing experimental and field evidence); Mauricio R. Delgado et al., 
Understanding Overbidding Using the Neural Circuitry of Reward to Design Economic 
Auctions, SCI., Sept. 26, 2008, at 1849; Mackintosh, supra note 129, at 15 (discussing a 
2010 auction of a $20 bill for $61). 

212 Amanda P. Reeves & Maurice E. Stucke, Behavioral Antitrust, 86 IND. L.J. 1527, 
1559 (2011) (discussing increasing interest in behavioral economics and its applications 
to competition law); Maurice E. Stucke, Behavioral Economists at the Gate: Antitrust in 
the Twenty-First Century, 38 LOY. U. Chi. L.J. 513 (2007). 

213 Malcolm Baker et al.. Behavioral Corporate Finance: A Survey, in HANDBOOK OF 

Corporate Finance: Empirical Corporate Finance 172 (B. Espen Eckbo ed., 2007); 

Hal R. Arkes & Catherine Blumer, The Psychology of Sunk Cost, 35 ORGANIZATIONAL 

Behav. & Hum. Decision Processes 124, 124-40 (1985). 

214 Spencer Weber Waller, Corporate Governance and Competition Policy, 18 GEO. 
MASON L. REV. 833 (2011); Pittman, supra note 204, at 215-19 (discussing empirical 


well-known biases and heuristics relevant to the decision to enter 
in mergers and acquisitions, which frequently result in value 
destroying transactions, include "myopia, loss aversion, 
endowment effects, status quo bias, extremeness aversion, over- 
optimism, hindsight bias, anchoring heuristics, availability 
heuristics, framing effects, representative bias, saliency effects, 
and others." 215 Executives, in behavioral studies, were 
overconfident in their ability to manage a company, systematically 
underestimated their competitors' strength, and were prone to 
self-serving interpretations of reality (e.g., taking credit for 
positive outcomes and blaming the environment for negative 
outcomes). 216 

Scenario III in theory should be of less concern. Absent a 
natural monopoly or high entry barriers, rational consumers 
should take their business elsewhere. The critical assumption is 
that when bounded rational firms, unlike their rational profit- 
maximizing counterparts, are overoptimistic concerning a 
merger's efficiencies, overconfident in their escaping detection for 
their cartel activities, and more or less risk averse in entering a 
new market, they quickly bear the cost of their miscalculation. 
The market swiftly punishes the bounded rationality. The firm 
either improves its decision-making or is eliminated. 

But this is not always true. As the financial crisis reflects, 
many Wall Street firms were not swiftly punished (or their 
executives ever punished) for their bounded rationality. 217 Thus, 

literature that stockholders of acquiring firms do not benefit or do not benefit much 
from mergers). 

215 Waller, supra note 214, at 878. 

216 Colin F. Camerer & Ulrike Malmendier, Behavioral Economics of Organizations, 

in Behavioral Economics and Its Applications 235, 246, 260-64 (Peter Diamond & 

Hannu Vartiainen eds., 2007). For several recent surveys of the empirical literature see 
Langevoort, supra note 69, at 73-77; Mark Armstrong & Steffen Huck, Behavioral 
Economics as Applied to Firms: A Primer, 6 COMPETITION POL'Y INT'L 2 (2010); and 
Christoph Engel, The Behaviour of Corporate Actors: A Survey of the Empirical 
Literature 7-8 (Max Planck Inst, for Res. on Collective Goods, Preprint No. 2008/23, 
Feb. 2010), available at 135184. 

217 See, e.g., Avishalom Tor & William J. Rinner, Behavioral Antitrust: A New 
Approach to the Rule of Reason after Leegin, 2011 U. ILL. L. REV. 805, 839 (2011) 
(noting how some bounded rational manufacturers will overuse resale price 
maintenance, and as the historical evidence and behavioral research reveal, "the 


one cannot assume that corporate behavior is as, if not more, 
rational than consumer behavior. 

1. Scenario Ill's Policy Implications Assuming the Government 

Is Rational 

One cannot say that the government is always less rational 
than private firms. With politically accountable elected 
representatives from different communities, a legislature can see 
what firms and individuals in any community cannot. 218 The 
government is not always more rational than its firms or citizens. 
But the legislature has a unique vantage. As President Roosevelt 
wrote in recommending the strengthening and enforcement of the 
antitrust laws, the larger and more important question involves 
honest citizens "who cannot see the social and economic 
consequences of their actions in a modern economically 
interdependent community." 219 

If private firms are less rational than consumers and the 
government, then one risk under Scenario III is that the 
government will seek to run the marketplace like a government 
bureaucracy. The government may seek to displace bounded 
rational firms with state-owned enterprises or regulate the firms 
with the goal "to organize the whole national economy like the 
postal system." 220 The government could become less rational, and 
the resulting risks (including authoritarianism) and societal 
welfare loss from government's central planning may far exceed 
the losses from the firms' bounded irrationality. 

Instead of central planning, a rational government should 
return to first principles. It should inquire why consumers did not 

efficacy of repeated decisions, organizations, and market pressure in correcting 
manufacturer bias is limited"). 

218 See Essay 10 of the Federalist, in THE ESSENTIAL FEDERALIST AND ANTI- 
FEDERALIST PAPERS 173 (David Wootton ed., 2003). 

219 Message from President Franklin D. Roosevelt to the Congress Transmitting 
Recommendations Relative to the Strengthening and Enforcement of Antitrust Laws. 
Apr. 29. 1938, S. Doc. No. 173, 75th Cong., 3d Sess. 1 (1938), reprinted in 4 EARL W. 

Kintner, The Legislative History of the Federal Antitrust Laws and Related 
Statutes 3408 (1978). 

220 MlSES, supra note 66, at xvi (quoting LENIN, STATE AND REVOLUTION 44, 83-84 
(Int'l Publishers 1932) (1917)). 


(or could not) punish the bounded rational firm. When consumers 
are sovereign, private firms have a strong incentive to debias in 
order to gain a competitive advantage and avoid consumer 
punishment. 221 Scenario Ill's policy implications differ from 
Scenario II's. Under Scenario II, it makes sense at times to 
insulate rational firms from consumers' bounded rationality and 
willpower (such as promoting the firm's incentives to maximize 
long-term value and economic efficiency, contrary to the pressures 
of bounded rational investors to maximize the stock price in the 
short-term). 222 Under Scenario III, in contrast, it makes sense at 
times to expose bounded rational firms to market demands. 223 The 
government should identify and eliminate protective barriers (e.g., 
high import tariffs) or subsidies that reduce the firms' incentives 
to debias. 224 

One incentive to debias is the prospect of failure and market 
exit. 225 Suppose a bounded rational firm, overconfident in its risk 
assessment models, becomes more leveraged. Ideally, industry 
regulators, creditors, and shareholders monitor the bounded 
rational firm to prevent such over-leveraging. But if the bounded 
rational firm is deemed too big (or important) to fail, the dynamics 
change. A dominant firm has greater incentive (and freedom) to 
take excessive risks. Rational investors know of the firm's implicit 
government guarantee. Its shareholders and creditors will not 
punish this risk-taking: when the risky investments work in the 
firm's favor, they benefit. When the risky investments fail, the 
government's implicit guarantee forecloses the possibility of 
market exit. 226 The government guarantee itself has value, which 

221 Langevoort, supra note 69, at 66-67. 

222 Baker et al., supra note 213, at 148. 

223 Id. 

224 Another possibility is that the managerial decisions are infrequent and do not 
provide clear feedback to managers, shareholders, and consumers. Camerer & 
Malmendier, supra note 216, at 258. 

225 In addition, there is the principal/agent problem. Managers have the incentive to 
take on large risks, when there is no downside to them personally. If the risky venture 
succeeds, the manager benefits from the increase in value to the firm and their 
compensation. If the risky venture fails, the managers may have already left the firm 
or leave with a golden parachute. CASSIDY, supra note 86, at 291. 

226 JOHNSON & KWAK, supra note 7, at 204. 


can reduce the firm's borrowing costs. 227 The too-big-and-integral- 
to-fail firms thus enjoy a competitive advantage over smaller 
rivals, which are allowed to fail. 228 Smaller firms cannot 
undertake such risk and cannot profit accordingly when the bets 
pay off. Without a government guarantee, the smaller firms incur 
higher costs to borrow money. Indeed, one criticism is that after 
the crisis, U.S. financial institutions increased their market power 
by acquiring competitors (such as Bank of America absorbing 
Merrill Lynch and Countrywide, JPMorgan Chase acquiring Bear 
Stearns and Washington Mutual, and Wells Fargo acquiring 
Wachovia), while nonbank mortgage lenders exited the 
marketplace. 229 So, smaller banks have a greater incentive to 
merge where they too become too-big-and-integral-to-fail. 

Consequently, overconfidence, especially for firms less 
dependent on lending intermediaries, can motivate merger 
activity, under Scenario III. Accordingly, rational competition 
officials would display: (i) greater skepticism over the likely 
efficiencies of otherwise problematic mergers; 230 (ii) greater 
concern over the systemic risks posed by the mergers; and (iii) 
greater concern, than they have in recent decades, over the 
likelihood and magnitude of false negatives rather than false 
positives in merger review. 

227 Id. at 180-81 (noting that during the crisis, large banks could borrow money at 
rates 0.78 percentage points more cheaply than smaller banks, which was higher than 
the average differential of 0.29 percentage points between 2000 and 2007). 

228 STIGLITZ, supra note 2, at 166; see also Mervyn King, Governor, Bank of Eng., 
Speech to the Scottish Business Organizations (Oct. 20, 2009), available at 
("Encouraging banks to take risks that result in large dividend and remuneration 
payouts when things go well, and losses for taxpayers when they don't," remarked the 
Governor of the Bank of England, "distorts the allocation of resources and management 
of risk."). 

229 JOHNSON & KWAK, supra note 7, at 171-72, 180 (noting how those three banks 
and Citibank controlled half the market for new mortgages, and two-thirds of the 
market for new credit cards). 

230 Waller, supra note 214, at 873-74 (noting how corporate finance literature 
suggests that "mega-mergers on a stock for stock basis between roughly equal 
competitors are highly likely to destroy shareholder value"). 


2. Scenario Ill's Policy Implications Assuming the Government 

Is Bounded Rational 

One risk is that the bounded rational government, 
overconfident in its understanding of competition, relies on 
empirically suspect assumptions. In presuming that firms are as 
rational as consumers, the government's theory of competition 
resembles Scenario I, when empirically it resembles Scenarios III 
or IV. The government's mergers policies accordingly are too 
lenient while its prosecutions of price-fixers are too severe. 

One concern is that the government, when confronted with 
evidence of firms' bounded rationality, either attempts to justify 
the behavior under rational choice theory, or if no explanation 
exists, ignores it. For example, the U.S. Horizontal Merger 
Guidelines assume that market participants behave as rational 
profit-maximizers. 231 Accordingly, sustained market power is not 
theoretically feasible where entry barriers are low. 232 Antitrust 
policy assumes that: (i) supra-competitive prices will attract 
rational profit-maximizing firms into markets characterized with 
low entry barriers; (ii) the new entrants will replenish the lost 
output; and (iii) as a result, prices will return closer to marginal 
cost. Operating under the false impression that market 
participants, pursuing their economic interests, will self-police 
and regulate, the government will be more concerned about the 
risk of false positives than negatives from their enforcement 
activity, especially in markets characterized with moderate to low 
entry barriers. 233 

But under Scenario III, contrary to the guidelines' 
hypothesis, firms do not always enter markets with low entry 
barriers to defeat the exercise of market power. 234 Nor does a 
bounded rational government inquire why price-fixing occurs in 

231 Horizontal Merger Guidelines, supra note 61, at § 1.0. 

232 Id. at § 9.0; Ball Mem'l Hosp., Inc. v. Mut. Hosp. Ins., Inc., 784 F.2d 1325, 1335 
(7th Cir. 1986) (noting that "the lower the barriers to entry, and the shorter the lags of 
new entry, the less power existing firms have"). 

233 Kara Scannell & Sudeep Reddy, Greenspan Admits Errors to Hostile House 
Panel, WALL ST. J., Oct. 24, 2008, at Al, available at 

234 Reeves & Stucke, supra note 212, at 1554-56. 


markets with low entry barriers. 235 Instead, the government seeks 
to reconcile this non-entry with its flawed economic theory (e.g., 
markets that "superficially" appear to have low entry barriers, 
actually are more difficult to enter, so rational profit-maximizing 
firms accurately discerned that entry would have been 
unprofitable at pre-merger levels). 236 

While too lenient in merger review, the bounded rational 
government, relying on optimal deterrence theory, can be too 
punitive in its criminal antitrust prosecutions. This too can harm 
consumers. The government erroneously believes that price-fixers, 
under Scenario III, behave as rational profit-maximizers. To deter 
cartels, optimal deterrence theory posits that the penalty should 
equal at least the violation's expected net harm to others (plus 
enforcement costs) divided by the probability of detection and 
proof of the violation. 237 Setting the antitrust penalty at this 
optimal level, in theory, should result in the socially optimal level 
of price-fixing. 

Faced with evidence of durable cartels and high recidivism, a 
bounded rational government, under optimal deterrence theory, 
can increase either: (i) the probability of detection (which is 
difficult with an already generous amnesty program to induce 
price-fixers to implicate their co-conspirators); or (ii) the criminal 
(and/or civil) penalties, which presumably are sub-optimal in 
deterring cartels. The problem is if the antitrust penalties are 
already at (or above) the optimal level. Bounded rational firms fix 
prices, not because the antitrust fines are too low, but due to 
situational (e.g., industry norms) and dispositional (e.g., 
executives' overconfidence in escaping detection) factors. The 

235 id. 

236 This ex post justification is a difference in perception — what seems like easy 
markets to profitably enter (such as turtles) are actually quite difficult. But this raises 
the accuracy of competition agencies (typically their paralegals and new lawyers) in 
screening thousands of HSR merger filings annually. How will they distinguish high 
and low entry barriers? Thus, a bounded rational government official can seek to 
explain ex post the lack of entry that is consistent with rational choice theory, but the 
issue is predicting entry ex ante. 

237 Gary S. Becker, Nobel Lecture: The Economic Way of Looking at Behavior, 101 J. 
POL. ECON. 385, 389-90 (1993); see also Gary S. Becker, Crime and Punishment: An 
Economic Approach, 76 J. POL. ECON. 169 (1968); William M. Landes, Optimal 
Sanctions for Antitrust Violations, 50 U. CHI. L. REV. 652, 656, 666-68 (1983). 


bounded rational government fails to recognize this possibility. 
Rather than address these situational and dispositional factors 
through a pluralism of mechanisms, such as criminal and civil 
penalties, structural means (improved merger review), and 
informal norms that highlight price-fixings ethical and moral 
implications, 238 the government instead continues to increase the 
penalties, under the belief they are suboptimal. Excessive fines 
can harm consumers when they cause firms to reduce investments 
in innovation and raise prices. If firms cannot absorb or otherwise 
pass along the fines as higher prices, then the firms either 
reorganize under the bankruptcy laws or exit the market, which 
as a consequence has fewer meaningful competitors. 239 

D. Scenario IV: Bounded Rational Firms and Consumers 

Under this last scenario, many market participants have 
bounded rationality and willpower. Biases and heuristics are 
systemic. At closer inspection, competition under Scenario IV is 
better viewed as a discovery process than a stable equilibrium. 
Bounded rational firms have imperfect knowledge about current 
and future consumer preferences, a blurred and changing 
understanding of their goals and preferences, and a limited 
repertoire of actions to cope with whatever problems they face. 240 
Bounded rational consumers have changing and, at times, 

238 See European Comm'n, DG Competition Stakeholder Study: Aggregate 
REPORT 8 (July 2010), available at 
reports/aggregate_report_en.pdf (Conducted by TNS Qual+ at the request of European 
Commission Directorate General for Competition, noting that a "number of 
stakeholders across all groups stressed that, while fines are an effective deterrent, they 
are not the only tool available to DG Competition. A number of alternatives were 
suggested (criminal sanctions, publication of the companies' infringements, 
compensation payments for harmed consumers, etc.) but with mixed views about 
whether individual criminal liability should be introduced as an additional deterrent."); 
Int'l Competition Network Working Grp. on Cartels, Defining Hard Core Cartel 
Conduct: Effective Institutions, Effective Penalties, in BUILDING BLOCKS FOR EFFECTIVE 
ANTI-CARTEL REGIMES (2005), available at http://www.internationalcompetition (noting additional ways of achieving 
deterrence, including press coverage). 

239 Maurice E. Stucke, Morality and Antitrust, 2006 COLUM. BUS. L. REV. 443, 481. 

240 Giovanni Dosi & Luigi Marengo, On the Evolutionary and Behavioral Theories of 
Organizations: A Tentative Roadmap, 18 ORG. SCI. 491, 492, 494 (2007). 


inconsistent preferences. 241 For example, they demand more 
choices than they actually prefer. 242 Bounded rational firms 
comply, leading to suboptimal results for consumers 243 and 
firms. 244 

241 See, e.g., Richard Layard, Happiness & Public Policy: A Challenge to the 
Profession, 116 ECON. J. C24, C24 (2006) (noting from happiness economic literature 
how "tastes are not given — the happiness we get from what we have is largely 
culturally determined"); Steven C. Michael & Tracy Pun Palandjian, Organizational 
Learning and New Product Introductions, 21 J. PROD. INNOVATION MGMT. 268, 270 
(2004) (discussing shampoo industry dynamism where consumers with changing tastes 
seek variety). 

242 Under Scenario I, providing rational consumers more choices is generally 
beneficial. Rational firms target consumers' particular needs and tastes more 
accurately with more choices. Market forces should set the optimal amount of choice. 
Rational manufacturers will supply (when profitable) products that satisfy the desired 
mix of price, performance, and other attributes. But under Scenario IV, more options 
do not always increase welfare. Under Scenario IV, bounded rational consumers may 
demand additional options and seek to preserve existing options. In one computer 
experiment conducted by Professor Ariely, participants tried to keep options open even 
when counter-productive. In the Door Game, each MIT student could click on three 
doors on the computer screen to find the room with the biggest payoff (between $0.01 
and $0.10). Each student was given 100 clicks, and could click one door as many times 
possible without a penalty. Each time the student sampled another door, that switch 
cost the student one additional click. Experiment Two, the Disappearing Door Game, 
was the same as the Door Game except each time a door was left unvisited for twelve 
clicks, it disappeared forever. To keep options open, participants in Experiment Two 
ended up making substantially less money (about fifteen percent less) than 
participants in Experiment One. Participants would have made more money by 
sticking to one door. A similar result occurred when participants were told the exact 
monetary outcome they could expect from each room. ARIELY, supra note 116, at 142- 

243 Some bounded rational consumers, faced with many choices, avoid choosing any 
option, even when the choice of opting out has negative consequences for future well- 
being. Simona Botti & Sheena S. Iyengar, The Dark Side of Choice: When Choice 
Impairs Social Welfare, 25 J. PUB. POL'Y & MARKETING 24, 26 (2006) (discussing 
information overload, where an increase in options raises the cognitive costs in 
comparing and evaluating the options and leads to suboptimal decision strategies). 
Other bounded rational consumers choose an option, but have lower confidence in their 
choice and greater dissatisfaction in choosing. 

244 The bounded rational firms, as a result, lose sales opportunities of their 
products. Iyengar and Lepper, in their famous experiment, set up a tasting booth in an 
upscale grocery store. The booth displayed either six or twenty-four different flavors of 
jam. A greater percentage of the shoppers stopped to sample one of the displayed jams 
when the booth had twenty-four jam flavors (sixty percent versus forty percent when 
booth displayed six jam flavors). But a lower percentage actually purchased a jar of jam 
(three percent versus thirty percent of customers when booth had only six flavors). 


Scenario IV competition is an "evolutionary trial and error 
process, in which the firms try out different problem solutions and 
can learn from the feedback of the market, which of their specific 
products and technological solutions are the superior ones." 245 
Rather than an end-state capable of being perfected, competition 
is a continuous process "in which previously unknown knowledge 
is generated," and "the multiplicity and diversity of the (parallel 
trials of the) firms might be crucial for the effectiveness of 
competition as a discovery procedure." 246 Firms and consumers 
make mistakes, readjust, and undertake new strategies. The 
competitive process "is inherently a process of trial and error with 
no stable end-state considered by the participants in the 
process." 247 

Scenario IV involves several important competitive 
dimensions beyond price. First, bounded rational firms compete in 
the ways they debias themselves. 248 Firms (like consumers) can 
improve (or regress) in their decision-making and willpower. 249 
The ways in which companies learn, accomplish tasks, and deal 

Sheena S. Iyengar & Mark R. Lepper, Wlien Choice Is De motivating: Can One Desire 
Too Much of a Good Thing?, 79 J. PERSONALITY & SOC PSYCHOL. 995, 995-1006 (2000). 

245 Kerber, supra note 203, at 2; see also Moreau, supra note 96, at 851 (discussing 
how "evolutionary theory refutes the neoclassical economic theory's focus on a steady 
state of the economic system"). Industries may have multiple equilibria. The speed 
with which the market approaches these equilibria may vary over time, and the 
equilibria themselves may change because of change in the system itself. The result is 
that "equilibrium points in an evolutionary system are rarely actually reached." 
Instead, these equilibrium points "serve as an attractor that pulls the system towards 
itself for a prolonged period, before giving way to a new attractor." Bart Verspagen, The 
Use of Modeling Tools for Policy in Evolutionary Environments, 76 TECHNOLOGICAL 
FORECASTING & SOC CHANGE 453, 455 (2009), available at 

246 Kerber, supra note 203, at 2. 

247 Moreau, supra note 96, at 851. 

248 See, e.g., Andrew Healy, Do Firms Have Short Memories?: Evidence from Major 
League Baseball, 9 J. SPORTS ECON. 407, 415-18 (2009) (discussing how some 
professional baseball teams overweigh, relative to more successful teams, athletes' 
recent performance in determining salary). 

249 See Linda Argote & Henrich R. Greve, A Behavioral Theory of the Firm — 40 
Years and Counting: Introduction and Impact, 18 ORG. SCI. 337 (2007) (surveying 
impact of Behavioral Theory of the Firm's impact on organizational science research, 
including institutional theory and population ecology); Dosi & Marengo, supra note 
240, at 491. 


with the uncertainty can vary. 250 Rather than incur costs to 
continually process information anew, bounded rational firms (like 
consumers) can use rules-of-thumb (heuristics). Firms with better 
routines and rules-of-thumb can lower their information 
processing costs and secure a competitive advantage. Firms can 
improve feedback mechanisms to learn more quickly from their (or 
other firms') mistakes. 251 Moreover, firms can identify common 
biases and take preventive measures. 252 Consequently, one 
important facet of Scenario IV competition is how firms discover 
and implement routines to gain a cost advantage. 

But if firms become too wedded to existing routines, they face 
the risk of competency traps. As industry conditions change, the 
firms' existing routines can place them at a competitive 
disadvantage. 253 Under Scenario IV, "In some sense knowledge 
depreciates in value over time." 254 Thus, another important 
dimension of competition is adaptive efficiency, 255 whereby 
bounded rational firms update routines to reflect consumers' 
changing preferences. 256 Firms compete by continually learning 

250 See Dan Lovallo & Olivier Sibony, The Case for Behavioral Strategy, McKlNSEY 
Q., Mar. 2010, at 3, available at 
webroot/files/cabelO.pdf (noting recent survey of 2,207 executives where only twenty- 
eight percent said the quality of their companies' strategic decisions was generally 
good, sixty percent thought that bad decisions were about as frequent as good ones, and 
twelve percent thought good decisions were altogether infrequent). 

251 See John A. List, Does Market Experience Eliminate Market Anomalies?, 118 Q.J. 
ECON. 41 (2003); John A. List, Neoclassical Theory Versus Prospect Theory: Evidence 
from the Marketplace, 72 ECONOMETRICA 615, 615 (2004). For example, frequent and 
more experienced sports cards traders display less of an endowment effect for sports 
cards (such as baseball trading cards) than for other items such as chocolates and 

252 Camerer & Malmendier, supra note 216, at 269 (noting some of the literature, 
investment firms combat loss aversion by having traders switch positions with one 

253 Eyal Biyalogorsky et al., Stuck in the Past: Wlxy Managers Persist with New 
Product Failures, 70 J. MARKETING 108 (2006) (discussing the "extensive attention in 
the literature" to firms' escalation of commitment, which is the tendency of managers 
to stay committed to a course of action despite strong negative feedback with respect to 
the advisability of this action); Michael & Palandjian, supra note 241, at 270 
(discussing literature on competency traps). 

254 NORTH, supra note 41, at 323 (discussing uncertainty in a non-ergodic world 
(e.g., Scenario IV)). 

255 Id. at 70. 

256 Michael & Palandjian, supra note 241, at 275. 


about customer preferences and competitors' experimentation, and 
experimenting themselves with new technologies, routines, and 
ways of organizing. 

A third important dimension of Scenario IV competition is in 
providing bounded rational consumers a better mix of solutions for 
their problems. 257 Through their (or monitoring their competitors') 
trial-and-error experiments, firms update product offerings to 
accommodate consumers' changing preferences. Their ability 
depends in part on the feedback loop's efficacy and the competitive 
behavior's transparency. 258 Alternatively, bounded rational firms 
in Scenario IV (as in Scenario II) can seek to mitigate competition 
by reducing price transparency and differentiating their products 
or services through branding and technological innovation. 259 

A fourth important dimension of Scenario IV competition is 
the importance of individuality, creativity, and distinctiveness. 
Under Scenario I competition, rational individuals are 
undifferentiated in motivation. When given the opportunity, they 
seek to promote their economic self-interest. Labor is a 
commodity, an instrument for providing goods and services, and 
can be downsized, outsourced, or automated. 260 There is no 
inherent dignity in work or greater social calling to use one's skills 
to society's betterment. But as a matter of common experience, the 
greater value we see our work as having, the more meaning we 
can attribute to our work, and the more engaged and motivated 
we will be in our work. 261 Scenario IV's theory of competition 

257 See MlSES, supra note 66, at 24 ("[Competition among the various 
entrepreneurs is essentially a competition among the various possibilities open to 
individuals to remove as far as possible their state of uneasiness by the acquisition of 
consumers' goods."); Kerber, supra note 203, at 4. 

258 Kerber, supra note 203, at 5. 

259 See Illinois ex rel. Burris v. Panhandle E. Pipe Line Co., 935 F.2d 1469, 1481 (7th 
Cir. 1991) ("Virtually all business behavior is designed to enable firms to raise their 
prices above the level that would exist in a perfectly competitive market."); see also 
Desai & Waller, supra note 78; Steiner, supra note 38, at 84-85 (discussing price 
premium for strong reputation brands). 

260 In contrast, the Clayton Act provides that the "labor of a human being is not a 
commodity or article of commerce." 15 U.S.C. § 17 (2006). 

261 Dan Ariely, The Upside of Irrationality: The Unexpected Benefits of 

DEFYING LOGIC AT WORK AND HOME 66-82 (2010); Jason Krieger, Creating a Culture of 
Innovation, GALLUP MGMT. J. (Oct. 5, 2010), 
content/143282/creating-culture-innovation.aspx (finding that higher levels of 


helps explain why firms devote significant resources in identifying 
and attracting talented workers. It re-introduces moral beliefs of 
why we work. 262 Scenario IV competition enriches our definition of 
labor, namely the opportunity to use one's unique gifts to improve 
the welfare of others, and thereby express and deepen individual 

In addition, by developing a unique identity, firms can 
promote (or hinder) social, ethical, and moral values that affect 
employee behavior; 263 these values in turn can lower the firm's 
monitoring costs and increase its competitiveness. 264 

Scenario IV competition also presents several risks. One risk 
is that with bounded rational firms and consumers, traditional 
forms of market failure (such as cartels and monopolies) are 
likelier in Scenario IV than Scenario I. 265 The stronger the 
presumption of rationality, the more likely the market will be 
efficient, and the less the governmental concern over the 
sustained exercise of market power in markets characterized with 
low to moderate entry barriers. Consumers can often defeat the 
exercise of market power by switching to lower-cost substitutes 
offered by other entrants. But as Scenario III discusses with 
bounded rational firms, entry does not always occur when rational 
choice theory predicts it should. 266 Cartels can be more durable 
when price-fixers, like the subjects in other behavioral 

employee engagement "correlate to more idea sharing, better idea generation, more 
creativity in role, and improved business outcomes (on key items, including customer 
metrics, productivity, and profitability)"). 

262 R.H. TAWNEY, THE ACQUISITIVE SOCIETY 33 (2004) ("For what gives meaning to 
economic activity, as to any other activity is [] the purpose to which it is directed."). 

263 Paul C. Nystrom, Differences in Moral Values Between Corporations, 9 J. BUS. 
ETHICS 971, 974 (1990) (survey of how closely-matched corporations within industrial 
sectors differed significantly than perceived). 

264 George A. Akerlof & Rachel E. Kranton, Identity Economics: How Our 
Identities Shape Our Work, Wages, and Wellbeing 39-59 (2010) (exploring how 
workers can abide to shared corporate norms, and lose utility when they put in low 
effort; and how job-holders, if they have only monetary rewards and only economic 
goals, "will game the system insofar as they can get away with it"). 

265 See Stucke, Behavioral Economists, supra note 212, at 546-75. 

266 See Reeves & Stucke, Behavioral Antitrust, supra note 212. 


experiments, are more trustful and cooperative than rational 
choice theory predicts. 267 

A second risk of Scenario IV competition is new forms of 
market failure. In competitive markets, firms identify and 
discover ways to solve consumers' problems. 268 But the financial 
crisis, Professor Stiglitz wrote, showed how the subprime 
mortgage industry worsened, rather than solved, borrowers' 
problems. 269 The subprime mortgages increased costs and risks for 
consumers while providing mortgage brokers and lenders greater 
fees. These products, however, increased risk to the institutions 
that acquired the ensuing credit default swaps and collateralized 
debt obligations. 270 Among the losers in the financial crisis were 
supposedly sophisticated investors who failed to appreciate these 
assets' risks. 271 Moreover, these financial innovations made 
speculation easier. 272 

A third risk arises from herding. Herding can be beneficial, 
as a consumer's utility from a product increases when others use 
the product. 273 But herding can pressure consumers to forego the 
superior technology for the perceived popular one. 274 Consumers, 
at times, are confronted with competing, incompatible 
technologies. In choosing, the consumer wants the technology 
platform that others will likely choose, as the more popular 
platform (e.g., Windows operating system) will attract more 
supporting complements developed for that platform. 275 Each 
consumer prefers the superior technology. But believing that 

267 See Stucke, Am I a Price-Fixer, supra note 208; Stucke, Behavioral Economists, 
supra note 212. 

268 Kerber, supra note 203, at 4. 

269 Stiglitz, supra note 2, at 5, 80. 

270 See Michael Lewis, The Big Short: Inside the Doomsday Machine (2010). 

271 JOHNSON & KWAK, supra note 7, at 199; CASSIDY, supra note 86, at 272. 

272 See Gillian Tett, Fool's Gold: How the Bold Dream of a Small Tribe at 
J. P. Morgan Was Corrupted by Wall Street Greed and Unleashed a 
CATASTROPHE (2009); CASSIDY, supra note 86, at 239, 243-50. 

273 Marina Lao, Networks, Access, and "Essential Facilities": From Terminal 
Railroad to Microsoft, 62 SMU L. REV. 557, 560-61 (2009). 

274 CASSIDY, supra note 86, at 130-31. 

275 See United States v. Microsoft Corp., 84 F. Supp. 2d 9, 20 (D.D.C. 1999); Case T- 
201/04, Microsoft Corp. v. Comm'n, 2007 E.C.R. 11-3601. 


others will opt for the subpar technology, the consumer will choose 
the subpar technology and contribute to the suboptimal outcome. 

Herding can cause irrational exuberance (or pessimism) over 
stocks, real estate, and tulips. 276 As Scenario II discusses, even 
rational investors can join (and lead) the herd if they can derive 
greater gains from the speculation. Herding can lead to fads, 
where a consumer's utility from an item (such as a designer bag) 
depends on who else owns the item (either the perceived trend- 
setters 277 or masses 278 ). Herding can increase market turmoil. 
When the speculative bubble bursts, the same group of financial 
institutions can decide to sell the same group of assets to maintain 
their target leverage ratio; this mass selling further depresses the 
assets' selling price, prompting the sale of even more assets to de- 
leverage. 279 

A fourth risk of Scenario IV competition is industry-specific 
market failures. One example is media bias. Historically, antitrust 
was concerned about supply-driven media bias. 280 Dominant 
media firms provide distorted, self-censored, or biased news 
coverage that deviates from the coverage consumers prefer. One 
way to reduce supply-driven media bias is to increase the number 
of independently-owned competitors, thereby: (i) increasing the 
likelihood that the media remain independent when governments 
attempt to manipulate the news; (ii) reducing the risk of 
information being suppressed or distorted when news providers 
have an interest in manipulating consumers' beliefs; and (hi) 

276 See John Kenneth Galbraith, A Short History of Financial Euphoria 

(Penguin 1994) (1889) (discussing primary motive to accumulate wealth is pecuniary 

278 See Peter Sheridan Dodds & Duncan J. Watts, Influentials, Networks, and 
Public Opinion Formation, 34 J. CONSUMER RES. 441, 441-58 (2007). 

279 CASSIDY, supra note 86, at 309-10. 

280 See, e.g., Maurice E. Stucke & Allen P. Grunes, Toward a Better Competition 
Policy for the Media: The Challenge of Developing Antitrust Policies That Support the 
Media Sector's Unique Role in Our Democracy, 42 CONN. L. REV. 101 (2009); Maurice E. 
Stucke & Allen P. Grunes, Antitrust and the Marketplace of Ideas, 69 ANTITRUST L.J. 
249, 249 (2001). 


driving media firms to invest in providing timely and accurate 
coverage. 281 

Under Scenario IV, in contrast, more media competition can 
increase, rather than reduce, media bias. Bounded rational 
consumers can suffer "belief perseverance," whereby they hold 
their views notwithstanding disconfirming evidence. 282 
Consumers search for, and overvalue, news information that 
favors their pre-existing cultural outlooks and ideology; they 
discount, and are reluctant to search for, information that 
contradicts or challenges their pre-existing cultural outlooks and 
beliefs. 283 Consumers trade-off the accuracy of a news source for 
confirmation of their pre-existing beliefs. 284 The marketplace of 
ideas becomes more fragmented as media outlets increasingly 
target specific ideological or political beliefs. The greater 
fragmentation of news coverage deprives "societies] of shared 
information and experiences, leaving us less able to discuss issues, 
less exposed to diverse viewpoints, and more inclined to connect 
primarily, or only, with those with whom we agree." 285 With 
greater fragmentation of news coverage, the danger exists that 
consumers seek out only those viewpoints with which they already 
agree, making reasoned debate more difficult. Accordingly, the 
greater danger to democracy, under Scenario IV, is not necessarily 
the lack of media competition, but too much competition and the 
ensuing demand-driven media bias. 286 

281 Matthew Gentzkow & Jesse M. Shapiro, Competition and Truth in the Market 
for News, 22 J. ECON. PERSP. 133, 135-44 (2008). 

282 Lee Ross et al., Perseverance in Self-Perception and Social Perception: Biased 
Attributional Processes in the Debriefing Paradigm, 32 J. PERSONALITY & SOC. 

Psychol. 880 (1975). 

283 See Dan M. Kahan & Donald Braman, Cultural Cognition and Public Policy, 24 
Yale L. & Pol'yRev. 149 (2006). 

284 Gentzkow & Shapiro, Market for News, supra note 281, at 144-45. 

285 Lee C. Bollinger, Uninhibited, Robust, and Wide-Open 119 (2010). 

286 See, e.g., Stefano DellaVigna & Ethan Kaplan, The Political Impact of Media 

Bias, in Fact Finder, Fact Filter: How Media Reporting Affects Public Policy 

(2008), available at; 
Matthew A. Baum & Tim Groeling, New Media & the Polarization of American 
Political Discourse, 25 POL. COMMC'N 345 (2008); Matthew Gentzkow & Jesse M. 
Shapiro, Media, Education and Anti-Americanism in the Muslim World, 18 J. ECON. 
PERSP. 117 (2004); Matthew Gentzkow & Jesse M. Shapiro, What Drives Media Slant? 
Evidence from U.S. Daily Newspapers, 78 ECONOMETRICA 35 (2010), available at 


1. Scenario IV's Policy Risks Assuming the Government Is 


If the government is relatively more rational than firms and 
consumers, there remains the risk, as in Scenarios II and III, of 
authoritarianism and corporate autocracy. 

The government, even if more rational, is not omniscient. The 
government can predict how it would react (under rational choice 
theory). But the government cannot necessarily predict how 
bounded rational firms and consumers behave under Scenario 

IV. 287 

One reason why predictions are harder under Scenario IV 
lies in the unpredictability of the non-price dimensions of 
competition. Heterogeneous firms can be more or less successful in 
debiasing, implementing knowledge into developing product or 
process innovations, and responding to uncertainty and 
consumers' changing tastes. Competitive dynamics can change in 
unforeseen ways, as bounded rational firms attempt to 
accommodate and adjust to changing consumer preferences. 288 
The success of those adjustments and accommodations, in turn, 
can depend on further changes by private and public 
institutions. 289 

Our knowledge of future events ranges between ignorance, 
uncertainty, risk, and certainty. Economic life is an adventure, 
but not a rollercoaster. Waking up tomorrow, I would not expect 
the value of the U.S. stock market to lose about $1.2 trillion, my 
employer to close its doors, or my country to default on its debt. 
But Black Swan events, Nassim Nicholas Taleb describes, carry 
an extreme impact and are outside the realm of regular; Charles S. 
Taber & Milton Lodge, Motivated Skepticism in the Evaluation of Political Beliefs, 50 
AM. J. POL. SCI. 755 (2006). 

287 See, e.g., Camerer & Fehr, supra note 126, at 50 (distinguishing between 
predictions when player strategies are complements (less predictable) and substitutes 
(more predictable)). 

288 Richard R. Nelson & Sidney G. Winter, An Evolutionary Theory of 
Economic Change 370 (1982). 

289 See, e.g., NORTH, supra note 41, at 116-26. 


expectations, because nothing in the past can convincingly point to 
its possibility. 290 

Even for non-Black Swan events, like the price of bagels, 
competition can be viewed under Scenarios I and IV. I expect my 
bagel shop tomorrow to have the same assortment of bagels (plain, 
onion, poppy seed, etc.) and prices as today. Consumer preferences 
should not change dramatically overnight. The price, variety, and 
quality of bagels should not fluctuate wildly (e.g., two dollar 
gourmet bagels on Thursday and seventy-cent plain bagels on 
Friday). But my comfort level decreases when trying to forecast 
bagel prices over a larger geographic area over a longer time 
period. The risk factors for the bagel industry, according to one 
public company, include: (i) changes in general economic 
conditions and discretionary consumer spending, particularly 
spending for meals prepared away from home; (ii) changes in 
consumer tastes and preferences, through new diet fads (e.g., low- 
carbohydrate diets) or government regulations (e.g., the 
prominent disclosure of nutritional and calorie information); (hi) 
food safety and reputation for quality; (iv) volatile commodity 
prices; (v) weather conditions (including natural disasters); 291 and 
(vi) a regional or global health pandemic, which could severely 
affect bagel businesses that position themselves as a 
"neighborhood atmosphere" where "people can gather for human 
connection and high quality food." 292 So, if bagel manufacturers 
face challenges in predicting and satisfying consumer preferences 
over the coming years, so too will competition authorities when 
predicting competitive effects in that industry. 

Adding to the uncertainty under Scenario IV is path 
dependency. Private and government agents' prior choices and 
historical experiences can constrain the current choice set. 293 A 
seemingly minor event that happened yesterday in the market can 

290 Nassim Nicholas Taleb, The Black Swan: The Impact of the Highly 
Improbable (2007). 

291 Einstein Noah Rest. Grp., Inc., Form 10-K Annual Report (Feb. 25, 2010), 
available at 

292 Id. 

293 NORTH, supra note 41, at 52; TAWNEY, supra note 262, at 28 (observing how 
revolutions "are apt to take their color from the regime which they overthrow"). 


have significant long-term consequences. 294 Some industries, like 
evolutionary processes generally, are characterized by a degree of 
persistence of random events. "Rather than being additive to a 
deterministic equilibrium, small random events in evolutionary 
processes may accumulate into larger factors that may change the 
nature of the system and its history." 295 Under an evolutionary 
economic process, "chance plays a significant role." 296 

One example is Microsoft. In the late 1960s, IBM controlled 
about seventy percent of the computer market. The Justice 
Department challenged IBM's practices, particularly its 
"bundling" hardware and software. During the antitrust litigation, 
IBM changed course: 

Precipitated by a massive antitrust complaint filed against 
IBM by the Justice Department in January 1969, the 
company reexamined its practices and decided to stop 
requiring customers to buy software, services, and hardware 
as one bundle in June of the same year. This pricing change 
opened up software markets to independent companies. 297 

This contributed to the development of the computer software 
industry. A decade later, when preparing to launch its personal 
computers, the still dominant IBM approached a start-up 
company Microsoft about creating a version of a BASIC computer 
program. Microsoft suggested that IBM talk to Digital Research, 
whose CP/M operating system had become the standard for 
computer hobbyists. But here, emotion apparently had a lasting 
impact. Digital Research's president reportedly disliked the 
arrogant IBM from his university days and was late in meeting 
the IBM executives (going flying earlier that day). After the 
negotiations stalled, IBM returned to Microsoft to create an 
operating system for its personal computer. When introducing its 

294 Verspagen, supra note 245, at 6; see also Frank Schweitzer et al., Economic 
Networks: The New Challenges, SCI., July 24, 2009, at 422, 423. 

295 Verspagen, supra note 245, at 4. 

296 Id. at 6; Schweitzer et al., supra note 294, at 423. 

297 R. Lougee-Heimer, The Common Optimization INterface for Operations 
Research: Promoting Open-Source Software in the Operations Research Community, 47 
IBM J. RES. & DEV. 57, 59 (2003) (citing THOMAS J. WATSON, JR., FATHER, SON & Co.: 

My Life at IBM & Beyond (1990)). 


PC, IBM sold the Microsoft operating system for a much lower 
price than the CP/M-86 system. 298 One could inquire what would 
have happened if the Justice Department never brought its 
antitrust suit against IBM or if Digital Research's president had 
not gone flying that day. 

Another factor is how randomness interplays with 
predictability in scale-free networks. 299 Scale-free networks are 
open. They expand through the continuous addition of new 
members to the system, and they exhibit preferential connectivity, 
in "that the probability with which a new vertex connects to the 
existing vertices is not uniform, [but] there is a higher probability 
that it will be linked to a vertex that already has a large number 
of connections." 300 To illustrate this, suppose three antitrust 
professors — Amelia, Beatrice, and Clara — start their careers at 
similar law schools and their scholarship objectively is of similar 
quality. The three professors form links (say collaborate on 
research projects) with one another. Their network expands with 
each new antitrust law professor. Each new professor must decide 
with which existing antitrust professor to collaborate. The new 
professors exhibit preferential connectivity, in that they generally 
prefer to link with more connected professors. Thus with Amelia, 
Beatrice, and Clara, the early rounds are more random: the new 
antitrust professor Daniela can decide to link with Amelia, 
Beatrice, or Clara. Suppose Daniela randomly decides to 
collaborate with Amelia and Clara. Now when new professor Eitel 
decides to collaborate, Amelia and Clara have a slight advantage 
over Beatrice. Thus, Amelia and Clara can grow in the number of 
links, as Beatrice lags behind. As Professor Barabasi observed 
with scale-free networks, the rich get richer. 301 The highly 
connected nodes (law professors Amelia and Clara in our example) 
acquire more links than the less connected nodes (e.g., Professor 

298 See Eric D. Beinhocker, The Origin of Wealth 326-27 (2006); The Rest of the 
Story, THE SCOBLE SHOW (Aug. 8, 2007), 

299 Albert-Laszlo Barabasi & Reka Albert, Emergence of Scaling in Random 
Networks, SCI., Oct. 15, 2009, at 509. 

3" Id. at 511. 

301 See Albert-Laszlo Barabasi, Scale-Free Networks: A Decade and Beyond, SCI., 
July 24, 2009, at 412 fig. 1. 


Beatrice), which leads to the emergence of a few highly connected 
nodes that become the main hubs for collaboration. Thus, in scale- 
free networks, one must view the entire process. If one examines 
the network only half-way through its formation, one might 
assume that the well-connected antitrust professors were 
attracting more links because they were better scholars. By then 
Amelia and Clara might be better scholars (due to the experience 
of collaboration and receiving as a result more information of 
current trends). But they reached that success through an element 
of luck in the beginning. Likewise, in examining the network only 
at its formation, one might assume that the market was 
contestable. Each professor has an equal chance of attracting the 
next link. 

2. Scenario IV's Policy Risks Assuming the Government Is 
Bounded Rational 

One risk, as in Scenarios II and III, is the bounded rational 
government's confirmation bias. The government officials will seek 
information that confirms (rather than disconfirms) their theory of 
competition (such as the market participants' rationality and 
willpower) and discounts or ignores information that challenges 
their beliefs. 302 Indeed, regulatory capture is most effective when 
the regulators' "share the worldview and the preferences of the 
industry they supervise." 303 This was the case with deregulation of 
the financial services industry, which began during the Reagan 
Administration, 304 and accelerated under the Clinton 305 and 
Bush 306 Administrations. One underlying force to this 
deregulatory movement was the flawed laissez-faire belief that 

302 CASSIDY, supra note 86, at 268-69 (recounting Federal Reserve's belief that 
advances in technology have enabled the financial services industry to better manage 
the hazards of their business). 

303 JOHNSON & KWAK, supra note 7, at 93. 
3M Id. at 70-74. 

305 Id. at 84, 89, 98-100, 136-44. 

306 Id. at 105; Paul Krugman, The Return of Depression Economics and the 

CRISIS OF 2008, 162-64 (2009) (criticizing the Bush Administration's laissez-faire 
attitudes); POSNER, supra note 101, at 113, 134-35, 235 (same). 


markets were composed of sophisticated investors, and the 
markets accordingly self-correct. 307 

A second policy risk arises when the bounded rational 
government is overconfident in its ability to assess the economic 
effects of certain restraints and predict the likely competitive 
effects of mergers. 308 Here competition officials do not recognize 
that their knowledge depreciates in value over time. They remain 
wedded to theories whose premises are no longer valid. They 
assume that their economic models still capture the key variables 
and that the market dynamics remain largely unchanged since 
they last investigated the industry. They assume that they can 
accurately predict the future from past experiences (as reflected in 
the data). 309 They do not assess their models' predictive quality. 

Antitrust's economic models mostly seek to reduce 
uncertainty and simplify. The predicative quality depends in part 
on the validity of the models' assumptions. Over the past two 
decades, the available market data have increased. Antitrust 
enforcers harnessed market data to conduct merger 
simulations. 310 Generally, the narrower the product category and 

307 see, e.g., justin fox, the myth of the rational market: a history of risk, 
Reward, and Delusion on Wall Street (2009); President's Working Grp. on Fin. 
Mkts., Over-the-Counter DERrvATivES Markets and the Commodity Exchange 

ACT (Nov. 1999), available at 
mkts/Documents/otcact.pdf; John Cassidy, Letter from Chicago: After the Blowup, NEW 
YORKER, Jan. 11, 2010, at 28; Kenneth M. Davidson, Reality Be Damned: The Legacy of 
Chicago School Economics, AM. INT., Nov. -Dec. 2009, at 36, http://www.the-american- cfm?piece=693; Paul Krugman, How Did Economists Get It So 
Wrong?, N.Y. TIMES, Sept. 6, 2009, at 36, 37 (noting that more important than the 
economists' failure to predict was "the profession's blindness to the very possibility of 
catastrophic failures in [the] market economy"). Thus, deregulating derivatives, under 
this flawed worldview, could only reduce, not increase, systemic risk. 

308 See, e.g., CASSIDY, supra note 86, at 275-76 (discussing illusion of predictability). 

309 NORTH, supra note 41, at 19. 

310 See Daniel Hosken et al., Demand System Estimation and Its Application to 
Horizontal Merger Analysis 5 (Fed. Trade Comm'n Bureau of Econ., Working Paper No. 
246, Apr. 2002), available at (discussing 
use of scanner data for demand estimation); David Scheffman, Best Practices for Data, 
and Economics and Financial Analyses in Antitrust Investigations (Apr. 2002) 
(unpublished manuscript), available at (providing 
guidelines on economic analysis for meeting with FTC Bureau of Economics); David 
Scheffman & Mary Coleman, FTC Perspectives on the Use of Econometric Analyses in 
Antitrust Cases 9 (undated) (draft document), available at 
ftcperspectivesoneconometrics.pdf (discussing the use of scanner data for demand 


geographic area studied, the shorter the time horizon, and the less 
likely that contingencies and random factors will play a material 
role in making outcomes indeterminate. 311 But as one recent 
survey observed, several limitations exist with the current 
economic models. 312 Data may be unavailable or limited in some 
industries, the models' assumptions are invalid, or the models' 
neglect non-quantifiable and long-run competitive effects, 
including the merger's impact on innovation. 313 Although merger 
simulations can inform antitrust analysis, the U.S. antitrust 
agencies wisely "do not treat merger simulation evidence as 
conclusive in itself." 314 With the rise of global trade, we are 
trending toward greater uncertainty, where contingencies or 
unforeseen factors across the globe (e.g., a string of worker 
suicides in Foxconn's factory in Shenzhen, China) can affect 
domestic competitors (like Apple) that rely on low-cost labor. 315 

A third risk under Scenario IV arises when the bounded 
rational government ignores non-quantifiable and long-run 
competitive effects, such as systemic risk. The government 
discounts or ignores evidence that its economic theory cannot 

estimation and other relevant economic analyses); see also FED. TRADE COMM'N & U.S. 

Dep't of Justice, Commentary on the Horizontal Merger Guidelines 6, 8, 9, 14 

(Mar. 2006), available at 
(describing use of scan data to estimate demand elasticities for branded consumer 

311 NORTH, supra note 41, at 20-22. For example, suppose two leading 
manufacturers of white pan bread decide to merge. Using retailers' historic in-store 
scan data, econometricians can examine what impact changes in the retail price of one 
brand, such as Wonder white pan bread, had on the unit sales of other branded or 
private label products, such as rye bread, bagels, or wheat bread. Using the scan data 
for white pan bread purchases in a specific market, such as Chicago, an econometrician 
may predict accurately the price of white bread shortly after the merger. But predicting 
bread prices across the United States (or globally) over a longer time period invites 
uncertainty as unforeseen events may affect demand, such as diet fads or supply. 

312 See Oliver Budzinski & Isabel Ruhmer, Merger Simulation in Competition 
Policy: A Survey, 6 J. COMPETITION L. & ECON. 277 (2009). 

313 Id. 

314 Horizontal Merger Guidelines, supra note 61, at 21. 

315 Kathrin Hille, Foxconn to Shift Some of Apple Assembly, FlN. TIMES, June 29, 
2010, at 1, available at 


explain, or scenarios that its theory does not contemplate. 316 The 
financial services industry during the 1990s and early 2000s, for 
example, underwent a mega-merger wave. 317 As a Department of 
Justice official noted, "[A] number of individual mergers during 
the 1990s ranked among the largest U.S. bank mergers ever, in 
terms of the real value of assets involved, and in terms of the 
share of total U.S. bank assets accounted for by the merging 
banks." 318 The financial sector was becoming more concentrated, 
and its profits were growing faster. 319 One mega- merger was 
between The Travelers Group, Inc. and Citicorp. The $70 billion 
merger created the world's largest commercial banking 
organization, with total consolidated assets of approximately $751 
billion. 320 During its merger review, the Justice Department 
"heard numerous complaints that Citigroup would have an undue 
aggregation of resources — that the deal would create G a firm too 
big to be allowed to fail." 321 But the Department "essentially 
viewed this as primarily a regulatory issue to be considered by the 
[Federal Reserve Board]." 322 The financial services industry was 
becoming more concentrated as a consequence of the merger wave 
among large financial institutions. 323 But the DO J never 

316 See, e.g., CASSIDY, supra note 86, at 221-34 (discussing Federal Reserve 
Chairman Alan Greenspan's failure to take seriously the concept of market failure). 

317 JOHNSON & KWAK, supra note 7, at 84-85. JPMorgan Chase, for example, was 
the result of mergers with "Chemical Bank and Manufacturers Hanover (1991), First 
Chicago and National Bank of Detroit (1995), Chemical and Chase Manhattan (1996), 
Bank One and First Chicago (1998), J. P. Morgan and Chase Manhattan (2000), and 
JPMorgan Chase and Bank One (2004)." Id. 

318 Robert Kramer, Chief, Litigation II Section, Antitrust Div., U.S. Dep't of Justice, 
"Mega-Mergers" in the Banking Industry, Address at the American Bar Associate 
Antitrust Section (Apr. 14, 1999), available at 

319 JOHNSON & KWAK, supra note 7, at 85. 

320 p r ess Release, Fed. Reserve Bd., Order for Travelers Group and Citicorp 
Approving Formation of a Bank Holding Company and Notice to Engage in 
Nonbanking Activities, (Sept. 23, 1998) [hereinafter Fed. Reserve Citicorp Order], 
available at 

321 Kramer, supra note 318, at 6 (emphasis added). 

322 Id. 

323 Kenneth D. Jones & Tim Critchfield, Consolidation in the U.S. Banking 
Industry: Is the "Long, Strange Trip" About to End?, FDIC BANKING REV. (Jan. 19, 
2006), available at 


considered systemic risk or how creating a firm too-big-and- 
integral-to-fail could distort competition. Its economic models 
mainly considered short-term price effects arising from the 
merger, namely whether Citicorp-Travelers, post-merger, could 
raise the price of its services in narrowly defined geographic 
markets. 324 In limiting its risk assessment to short-term price 
effects, the government can fail to see or consider the merger's 
impact on the efficiency, competitiveness, and stability of the 
overall financial system. 

The financial markets, when viewed as a complex adaptive 
system, can become more vulnerable as one bank increases in size 
and becomes too-big-and-integral-to-fail. 325 This is not always 
apparent. During relatively calm periods, having large financial 
institutions can appear beneficial. If a peripheral bank is subject 
to a random shock, the network's health remains stable. Indeed, 
the larger banks may be credited for absorbing the shock. 326 "It is 
only when the hub — a large or connected financial institution — is 
subject to stress that network dynamics will be properly 
unearthed," said a Bank of England executive. "When large 

index.html ("Over the two decades 1984-2003, the structure of the U.S. banking 
industry indeed underwent an almost unprecedented transformation — one marked by a 
substantial decline in the number of commercial banks and savings institutions and by 
a growing concentration of industry assets among a few dozen extremely large financial 
institutions."). Between year-end 1984 and 2003, the number of banking and thrift 
organizations declined almost forty-eight percent from 15,084 to 7,842. Id. Mergers and 
acquisition accounted for most of this increased concentration. Id. 

324 The DOJ does not generally challenge mergers between firms dominant in 
different markets (for example, a bank dominant in the western United States merges 
with a dominant bank in the eastern United States). Kramer, supra note 318, at 7 
(noting how the NationsBank and Bank of America mega-merger "was a classic market 
extension merger since NationsBank's operations focused generally on the east coast 
and south and Bank of America was largely on the west coast" so the merger's 
competitive issues for the DOJ involved only two states — New Mexico and Texas). 

325 Thomas J. Horton, The Coming Extinction of Homo Economicus and the Eclipse 
of the Chicago School of Antitrust: Applying Evolutionary Biology to Structural and 
Behavioral Antitrust Analyses, 42 LOY. U. CHI. L.J. 469 (2011) (an evolutionary biology 
perspective on why large economic concentrations, such as monopolies and oligopolies, 
are vastly overrated in terms of their overall efficiency and positive impacts on our 
economic system, and how the Chicago School underrates their dangerous impacts). 

326 CASSIDY, supra note 86, at 283 (recounting Greenspan's praise of large 
systemically important banks' use of credit derivatives to stabilize the banking 


financial institutions came under stress during this crisis, these 
adverse system- wide network dynamics revealed themselves." 327 

Even if the government acknowledges systemic risks, the 
risks are often harder to quantify and thus easier to ignore. Under 
a total welfare analysis, the competition authority assesses a 
merger's risks (and costs) over the short-term (including its 
impact on consumer and producer surplus) and long-term 
(including its effect on the network's resilience). 328 Assessing the 
merger's short-term static price effects (e.g., whether the banks 
post-merger can raise rates for specific categories of borrowers) is 
often easier than assessing and quantifying the merger's long- 
term impact on the efficiency, competitiveness, and stability of the 
overall financial network. But if the government ignores the 
mega-merger's risks to the overall financial network's resilience, 
the merger analysis is incomplete and potentially flawed. This 
risk is compounded when the bounded rational government, 
overconfident that its merger analysis identifies all the significant 
anticompetitive risks, goes beyond approving mega-mergers that 
are viewed as market extensions (despite the long-term risks 
these mergers may pose) and seeks to dismantle any restraints on 
future industry concentration. 329 

327 Andrew G Haldane, Executive Director, Fin. Stability, Bank of Eng., Rethinking 
the Financial Network 11, Address at the Financial Student Association, Amsterdam 
(Apr. 2009), available at 

328 Sally J. Goerner et al., Quantifying Economic Sustainability: Implications for 
Free-Enterprise Theory, Policy and Practice, 69 ECOLOGICAL ECON. 76, 77 (2009); 
Howard A. Shelanski, Enforcing Competition During an Economic Crisis, 77 
Antitrust L.J. 229, 239-45 (2010). 

329 In the Citicorp/Travelers merger, a "significant number of other commenters" 
told the Federal Reserve that the merger violated the Glass-Steagall Act; they "urged 
the Board not to consider the proposal unless and until Congress amends the law to 
allow unlimited combinations of insurance, banking and securities businesses." Fed. 
Reserve Citicorp Order, supra note 320, at 6. Travelers CEO Sanford Weill hoped his 
mega-merger would push Congress to remove the barriers under the Glass-Steagall 
Act. The NewsHour with Jim Lehrer: Financial Powerhouse (PBS television broadcast 
Apr. 7, 1998), available at 
merger_4-7.html. Congress did so a year later with the Gramm-Leach-Bilely Act of 
1999. The 1999 law repealed the Glass-Steagall Act's restrictions on bank and 
securities-firm affiliations, and amended the Bank Holding Company Act to permit 
affiliations among financial services companies, including banks, securities firms and 
insurance companies. Glass-Steagall Act (1933), N.Y.TlMES.COM, 


A fourth risk under Scenario IV is when a bounded rational 
government is overconfident in its ability to regulate firms deemed 
too-big-and-integral-to-fail. For example, commenters warned the 
Federal Reserve Board that the Citicorp-Travelers mega-merger 
"would result in an undue concentration of resources and in an 
organization that is both 'too big to fail' and 'too big to 
supervise.'" 330 But in permitting the merger, the Federal Reserve 
responded that the nation's largest corporate merger "would have 
a de minimis effect on competition." 331 The Federal Reserve 
rejected the argument that the absolute or relative size of Citicorp 
would adversely affect the market structure. 332 It failed to see how 
"the size or breadth of Citicorp's activities would allow it to distort 
or dominate any relevant market." 333 Finally, the Federal 
Reserve, with its "extensive experience supervising Citicorp," 
confidently stated that it "developed a comprehensive, risk-based 
supervision plan" to effectively monitor Citibank; moreover, other 
government agencies, like the Securities and Exchange 
Commission, would "assist the Board in understanding Citigroup's 
business and the risk profiles of those businesses." 334 

As the merger played out over the next decade, Citigroup 
senior management and the government demonstrated their poor 
understanding of the risk profiles of the collateralized debt 
obligation (CDO) business. 335 In 2008, Citibank, and other 
financial institutions considered too-big-and-integral-to-fail, were 
(or were perceived to be) failing and received an implicit 

3/index.html (last visited Nov. 1, 2011). 

330 p e( j Reserve Citicorp Order, supra note 320. at 74. 

331 Id. at 75. 

332 Id. at 85. 

333 Id. at 86. 
33 < Id. 

335 After Citigroup senior executives testified before the Financial Crisis Inquiry 
Commission investigators on the cause of Citigroup's 2008 bailout, the Commission's 
Chairman, Phil Angelides, said, "One thing that is striking is the extent to which 
senior management either didn't know or didn't care to know about risks that 
ultimately helped bring the institution to its knees." Bradley Keoun et al., Citigroup 
"Liquidity Puts" Draw Scrutiny from Crisis Inquiry, BLOOMBERG, Apr. 13, 2010, 


government guarantee. Citigroup, an early recipient of the 
government bailout, received a $45 billion emergency infusion and 
$301 billion of government asset insurance, which was the largest 
taxpayer bailout for any U.S. bank. 336 

3. Policy Alternatives under Scenario IV 

Given Scenario IV's competitive dynamics, one could argue 
that the government cannot accurately predict the merger's likely 
competitive effects. Accordingly, the government should abstain 
from predictions and challenge only those consummated mergers 
where significant anticompetitive effects have manifested. 337 But 
waiting post- merger for anticompetitive effects can foreclose 
effective relief (one reason why Congress facilitated pre-merger 
review). 338 

Moreover, bounded rationality differs from ignorance. At 
times, the problems are apparent. One need not be a Homo 

336 See Wliere is the Money?: Eye on the Bailout, PROPUBLICA, (last visited Nov. 1, 2011); see also 
CASSIDY, supra note 86, at 330 (noting that although politically unpalatable to the 
Bush Administration, nationalizing Citibank might have been cheaper than insuring 
its toxic assets); Keoun et al., supra note 335. 

337 See, e.g., General Tel. Co. of the Sw. v. United States, 449 F.2d 846, 863 (5th Cir. 
1971) ("In a complex and dynamic industry such as the communications field, it cannot 
be expected that the agency charged with its regulation will have perfect clairvoyance. . 
. . 'Hardship must at times result from postponement of the rule of action till a time 
when action is complete. It is one of the consequences of the limitations of the human 
intellect and of the denial to legislators and judges of infinite prevision."' (quoting 

Benjamin N. Cardozo, The Nature of the Judicial Process 145 (1921))). 

338 Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. § 18a (2006); 
United States v. Computer Assocs. Int'l, Inc., Civ. Action No. 01-02062(GK), 2002 WL 
31961456 (D.D.C. Nov. 20, 2002) (discussing policies underlying the pre-merger 
notifications requirements of the HSR Act); see also T-201/04, Microsoft Corp. v. 
Comm'n, 2007 E.C.R. 11-3601, 2007 WL 2693858 ("If the Commission were required to 
wait until competitors were eliminated from the market, or until their elimination was 
sufficiently imminent, before being able to take action under Article 82 EC, that would 
clearly run counter to the objective of that provision, which is to maintain undistorted 
competition in the common market and, in particular, to safeguard the competition 
that still exists on the relevant market."); Spencer Weber Waller, Prosecution by 
Regulation: The Changing Nature of Antitrust Enforcement Case, 77 OR. L. REV. 1383, 
1397-98 (1998). After the merger, employees may leave the company, manufacturing 
plants may have closed, the former competitors' goods and services may be a shadow of 
their former competitive might, and the merged entities' operations may be so 
integrated that structural remedies are impractical. 


Economicus to see America's obesity problem. A bounded rational 
government can assist consumers', firms', and its own learning 
processes by improving the feedback loop. The government can 
disseminate information of market participants' trial-and-error 
experiments, and assist participants in integrating and applying 
that knowledge. Advances in telecommunications, for example, 
have helped farmers in India to not only learn the latest crop 
prices but to also increase their yields and efficiencies by learning 
from researchers' and other farmers' lessons through trial-and- 
error. 339 Farmers use cell phones to learn how to use less seed, 
fuel, and fertilizers, while reaping bigger harvests. 340 

The government can also opt for structural safeguards to 
promote industry diversity and stability. As the U.S. government 
found after the financial crisis, "[restrictions on future growth by 
acquisition of the largest financial companies ultimately will 
prevent acquisitions that could make these firms harder for their 
officers and directors to manage, for the financial markets to 
understand and discipline, and for regulators to supervise." 341 

On the one hand, systemic risk is not limited to highly 
concentrated markets. Small bounded rational banks can 
similarly ignore their activities' riskiness. 342 Several bank failures 
can have a cascading effect when banks respond similarly to 
cripple the banking system. 343 On the other hand, a larger, more 
diverse pool, while susceptible to herding, "leads to a higher 
probability that in the case of an exogenous shock one of these 
technologies will provide an appropriate solution." 344 
Consequently, perhaps the best recipe for confronting uncertainty 

339 Richard Stone, News: Dialing Up Knowledge— And Harvests, SCI., Feb. 12, 2010, 
at 808. 

340 Id. 

341 Fin. Stability Oversight Council, Study & Recommendations Regarding 
Concentration Limits on Large Financial Companies (Jan. 2011), available at 
ts%20on%20Large%20Firms%2001-17-ll.pdf (discussing benefits of the concentration 
limits under section 622 of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act). 

342 Indeed, rational banks may engage in risky behavior or risk the erosion of their 
stock price over the short-term. 

343 Schweitzer et al., supra note 294, at 424-25; STIGLITZ, supra note 2, at 149. 

344 Kerber, supra note 203, at 9. 


and systematic risk is maintaining diversity and "institutions that 
permit trial and error experiments to occur." 345 

Ultimately, a key issue under Scenario IV is one of 
institutional design. Does the government have sufficient 
incentive to recognize its bounded rationality, to continually learn 
and update its beliefs, and to update its policies accordingly? One 
impediment the government faces is the behavioral bias of belief 
perseverance'. Confident in the predictive quality of its 
competition policies, the government may argue that there is no 
need to empirically test whether its predictions are indeed 
accurate; it also ignores or discounts competitive behavior that its 
economic theories cannot explain. 

A second impediment is incentives. Bounded rational firms at 
least have an incentive to improve their rationality and willpower 
when debiasing provides a competitive advantage. The 
government lacks this incentive. At times, competition agencies 
compete for prestige, resources, and cases (such as the Federal 
Trade Commission and the Justice Department over mergers). 
But inter-agency competition does not necessarily increase 
political accountability that reduces biases and heuristics. 346 The 
competition agency may attract inquisitive dynamic leaders who 
want to critically test the economic theory's assumptions. But 
others in government will likely resist. This critical assessment 
diverts staff and funding from immediate prosecutions. 
Prosecutions bring publicity, which the agency uses to justify its 
existence. The rewards from institutional learning accrue over the 
long-term, often after the political appointees leave office. 
Moreover, some economic experts and lawyers whose livelihood 
depends on rational choice theory (and firms that benefit from 
these antitrust policies) will discourage such empiricism as a 
waste of time and resources. Consequently, government 
institutions often lack sufficient incentives to continually test 

345 Lawrence A. Sullivan & Warren S. Grimes, The Law of Antitrust: An 

INTEGRATED HANDBOOK 11 (2d ed. 2006) (unconcentrated markets reduce the risk of 
costly error); NORTH, supra note 41, at 163. 

346 When test subjects were expected to defend their judgments to their peers, 
subjects chose more complex and time-consuming decision-making strategies. Ziva 
Kunda, The Case for Motivated Reasoning, 108 PSYCHOL. BULL. 480, 481 (1990). 


their assumptions, to retrospectively examine the efficacy of their 
actions, and to use these findings to update their policies. 347 

Competition agencies need patient gardeners, who 
experiment, monitor, and update the economic theories. But 
structural mechanisms are needed to ensure that the agencies 
hire and support these gardeners who tend to antitrust policy. 
One mechanism is to increase the government's accountability. 
This can be done directly, as in the European Union, where the 
European Commission's inaction (e.g., not enjoining a merger) can 
be challenged in court. But this assumes that the court will strike 
the right balance in deference. 

A second mechanism is to require the competition agencies to 
explain why they did not challenge mergers, subject to extended 
review. 348 The competition agency should explain each critical 
assumption it made in determining that the merger was unlikely 
to lessen competition. 349 The agencies should be required to 
undertake and publish more post-merger reviews, to test whether 
these assumptions indeed were valid. At times, enforcement 
actions lead to undesirable outcomes. High criminal fines can 
hamper competition. Divestitures of assets, as part of merger 
review, may later prove inadequate. Behavioral remedies may 
unintentionally lead to anticompetitive results. 350 Subjecting the 

347 NORTH, supra note 41, at 68. 

348 The U.S. competition agencies at times issue closing statements, but the analysis 
can vary considerably. Compare Press Release, Fed. Trade Comm'n, Statement of the 
Federal Trade Commission Concerning Royal Caribbean Cruises, Ltd./P&O Princess 
Cruises pic and Carnival Corporation/P&O Princess Cruises pic, FTC File No. 021 0041 
(Oct. 4, 2002), available at, with 
Press Release, U.S. Dept. of Justice, Statement of the Department of Justice's 
Antitrust Division on Its Decision to Close Its Investigation of the Merger of Delta Air 
Lines Inc. and Northwest Airlines Corporation, Oct. 29, 2008, available at 

349 If the agency believes that the merger is anticompetitive, but feels that it would 
lose in court, the agency should say so. Otherwise, the courts and Congress will be 
unaware of the unintended consequences their current legal standard is causing. 

350 p or example, making price information public may make collusion easier. See 
Maurice E. Stucke, Evaluating the Risks of Increased Price Transparency, 19 SPRING 
ANTITRUST 81 (2005), available at; OECD'S 

Directorate for Fin., Fiscal and Enter. Affairs, Comm. on Competition Law & 
Policy, Competition Policy Roundtable: Price Transparency 205-09 (Sept. 11, 

2001), available at (discussing benefits 
and detriments of price transparency in the United Kingdom). 


competition agencies' actions to external review and criticism, 
such ex post review, would require greater accountability by those 
entrusted with enforcing the antitrust laws. 

Third, the competition authorities should periodically 
commission empirical research to test the continuing validity of 
the assumptions underlying their policies. The government 
agencies "have the ability to study over time how individuals 
behave in certain settings," 351 which is exactly what the U.K.'s 
Office of Fair Trading is doing with pricing frames. 352 


To design better competition policies, we need to understand 
the limits of our current policies. Thus, as the Chicago School 
recognized, defining competition and the goals of competition law 
are paramount. This is because "[everything else follows from the 
answer we give." 353 Going forward, competition authorities must 
first reevaluate their theory of competition. As this article shows, 
no satisfactory definition of competition exists. Some consider 
competition as an idealized end-state (such as static price 
competition under the economic model of perfect competition); 
others view competition as a dynamic process. 

Any theory of competition will depend on its premises. 
Altering one set of assumptions (rationality of firms and 
consumers) expands the current theories of competition into the 
frontiers of Scenarios II, III, and IV. Altering the assumption of 
the government's relative rationality adds additional policy 

One cannot understand competition deductively from the 
assumption of rational market participants with perfect 
willpower. Nor can one assume that every market is confined to 

351 Rosch, Next Challenges, supra note 63, at 17. 

352 See Office of Fair Trading, supra note 135. 

353 BORK, supra note 8, at 50. Not surprisingly, Bork, in his paradigm-shifting book, 
the ANTITRUST PARADOX, first defined competition, then outlined his goals of 
competition law, from which his legal standards to achieve these goals arose. After 
rejecting the definitions of competition as rivalry, perfect competition ("utterly useless 
as a goal of law"), and protection of fragmented markets, Bork settled on his definition 
of competition, namely as "a shorthand of expression of consumer welfare," which in 
turn comported with his goal of competition law. Id. at 57-61. 


one scenario. In markets with sophisticated participants dealing 
in homogenous goods where price rather than innovation is key, 
competition can resemble Scenario I. Other markets can resemble 
Scenario IV, where "competition is a method for solving knowledge 
problems through a trial and error process." 354 Nor are industries 
confined to one scenario. Industries can originate in Scenario IV 
when uncertainty exists over consumers' preferences and how the 
new technology benefits consumers. 355 Various experimental 
designs are at play until through trial-and-error (or network 
effects) a dominant design emerges. As the industry matures, 
consumers and manufacturers experiment less, variety decreases, 
and competition turns more on price. 356 

Competition is better understood inductively through 
empirical research. In analyzing competition under the frontiers of 
Scenarios II, III, and IV, policymakers will see beyond static price 
competition in narrowly defined antitrust markets. Issues of 
systemic risk, behavioral exploitation, herding behavior, and 
overconfidence bias will increase in importance. Antitrust analysis 
accordingly will shift from narrowly defined markets to vertical 
and horizontal competition among larger units, systems, 
platforms, and alliances in which potential competition plays an 
important analytical role. 

Going forward, there will unlikely be any unifying definition 
of competition. Competition, like any complex system, is 
incompressible, in that it is "impossible to account for the system 
in a manner that is less complex than the system itself." 357 Once 
policymakers relax the premises of their theories of competition, 
they will encounter greater complexity. They will increasingly 

354 Kerber, supra note 203, at 5. 

355 Richard R. Nelson & Sidney G. Winter, Evolutionary Theorizing in Economics, 
16 J. ECON. PERSP. 23, 35 (2002). 

356 Grant Miles et al., Industry Variety & Performance, 14 STRATEGIC MGMT. J. 163, 
167 (1993) (discussing product life cycle); B-EINHOCKER, supra note 298, at 254-57; 
Nelson & Winter, supra note 355, at 36. 

357 Organisation for Econ. Co-operation and Dev., A Framework to Measure the 
Progress of Societies: Statistics Directorate 13 n.8 (OECD Statistics Working Paper 
Series, Paper No 34, July 12, 2010), available at 


perceive competition as an often unpredictable, dynamic process, 
not easily subject to mathematical modeling. 

One might ask whether defining competition, given the 
complexities, is necessary. But one cannot understand what goals 
are achievable from a competition policy, unless one better 
comprehends how competition works. And one cannot understand 
competition, if one relies on a flawed assumption of rationality. 

Consequently, the first order is to understand how 
competition works in particular industries and to reevaluate the 
premises of our theory of competition, including the rationality of 
the market participants and the interplay among government 
institutions and informal social, ethical, and moral norms. 
Although competition agencies are increasingly sharing market 
studies, 358 this remains competition policy's weakness. 359 

In revisiting their theory of competition, including the 
underlying assumptions, competition authorities should look 
beyond antitrust's current neoclassical economic theories and 
consider the developments in several inter-disciplinary fields, such 
as behavioral economics, new institutional economics, and 
evolutionary economics. The literature can provide a richer 
understanding of the observed marketplace behavior, how 
consumers choose, and additional remedial options, including 
default options. Ultimately, these interdisciplinary economic 
theories can improve antitrust analysis by helping us understand 
first, what competition is; second, what competition can achieve 
for us; and third, how competition can promote the good life. 

358 Int'l Competition Network, Market Studies Good Practice Handbook (ICN 
Advocacy (Market Studies Project) Working Group, Apr. 2010), available at 

359 Kerber, supra note 203, at 6 ("no serious theoretical and empirical economic 
research" has been undertaken about Hayek's concept of competition as a discovery 


Christine Metteer Lorillard* 

Introduction 189 

I. Competing Rights— Privacy vs. Free Speech 200 

A. The Right of Privacy 200 

B. The First Amendment Right of Free Speech 

for School Students 208 

II. The Internet- Expression Cases: Students 
Targeting School Administrators and Teachers 217 

III. J.C. exrel. R.C. v. Beverly Hills Unified 
School District. Student-on-Student Internet 

Attacks 246 

conclusion: applying the "substantial nexus" 

Inquiry Beyond Tinker 256 


lAGO: Good name in man and woman, dear my lord, 
Is the immediate jewel of their souls: 

Who steals my purse steals trash: 'tis something, nothing; 
'Twas mine, 'tis his, and has been slave to thousands; 
But he that filches from me my good name, 

* Professor of LAWS (Legal Writing Analysis and Skills), Southwestern Law 
School. B.A., M.A., Ph.D., UCLA. The author wishes to thank Nicole Elzroth Oden for 
her research assistance, and Mathew Rudes for his assistance with the recent Third 
Circuit en banc decisions in Layshock v. Hermitage School District, 650 F.3d 205 (3d 
Cir. 2011) (en banc), and J.S. ex rel. Snyder v. Blue Mountain School District, 650 F.3d 
915 (3d Cir. 2011) (en banc). 



Robs me of that which not enriches him, 
And makes me poor indeed. 

William Shakespeare, Othello act 3, sc. 3, 155-61. 

PRESIDENT ANDREW SHEPHERD: America isn't easy. America is 
advanced citizenship. You gotta want it bad, 'cause it's gonna 
put up a fight. It's gonna say "You want free speech? Let's see 
you acknowledge a man whose words make your blood boil, 
who's standing center stage and advocating at the top of his 
lungs that which you would spend a lifetime opposing at the 
top of yours. You want to claim this land as the land of the 
free? Then the symbol of your country can't just be a flag; the 
symbol also has to be one of its citizens exercising his right to 
burn that flag in protest." Show me that, defend that, 
celebrate that in your classrooms. Then, you can stand up and 
sing about the land of the free. 

Portrayed by Michael Douglas, The American President 
(Castle Rock Entertainment 1995). 

These two passages are not only familiar to many, but also 
express the beliefs many of us share and hold dear. Yet, to some 
degree, they are antithetical. At the very least, they set up the 
tension between the right of privacy 1 and the First Amendment 
right of free speech. But they also underlie concerns that have 
arisen about attempts to regulate internet expression, 2 especially 

1 William L. Prosser, Privacy, 48 CALIF. L. REV. 383, 398 (1960) ("The interest 
protected is that of reputation, with the same overtones of mental distress that are 
present in libel and slander. It is in reality an extension of defamation, into the field of 
publications that do not fall within the narrow limits of the old torts, with the 
elimination of the defense of truth." footnote omitted)). 

2 See, e.g., Stephen Lendman, Internet Threatened by Censorship, Secret 
Surveillance, and Cybersecurity Laws, FOG CITY J. (May 22, 2009), 
secret-surveillance-and-cybersecurity-laws/. Lendman argues: 

At a time of corporate dominated media, a free and open Internet is 
democracy's last chance to preserve our First Amendment rights without 
which all others are threatened. Activists call it Net Neutrality. Media 
scholar Robert McChesney says without it "the Internet would start to look 
like cable TV (with a) handful of massive companies (controlling) content" 
enough to have veto power over what's allowed and what it costs. Progressive 


that of school children. What happens when these rights collide at 

A recent case from the Central District of California, J.C. ex 
rel. R.C. v. Beverly Hills Unified School District, 3 illustrates the 
problem and has gotten a great deal of attention from the media, 
mostly arguing for the need to protect students from cyber- 
bullying by other students, 4 and from free speech advocates, 
arguing for robust constitutional protections of student internet 
speech originating off campus. 5 Beverly Hills is unique, however, 
because unlike the eleven other cases of student off-campus 
internet expression that eventually makes its way onto campus, 6 
Beverly Hills did not involve cyber-harassment of school teachers 
or administrators, but true cyber-bullying of another student in 
the same school. 7 

web sites and writers would be marginalized or suppressed, and content 
systematically filtered or banned. 


3 711 F. Supp. 2d 1094 (CD. Cal. 2010). 

4 Victoria Kim, A Right for Students to be Cruel Online? LA. TIMES, Dec. 13, 2009, 
at Al (responding to the as yet unpublished decision of Steven V. Wilson in Beverly 
Hills); see also Nancy Willard, There Is No Constitutional Right to be a Cyberbully: 
Analysis of J.C. v. Beverly Hills Unified Sch. Dist., CENTER FOR SAFE AND RESPONSIBLE 
INTERNET USE (Dec. 16, 2009), 

5 Frank LoMonte, Beverly Hills (Speech) Cop I: Court slams schoolhouse gate on 
school discipline of YouTube posting, STUDENT PRESS LAW CENTER (Dec. 19, 2009), 

6 See discussion infra Part II. The closest case seems to be Coy v. Board of 
Education, 205 F. Supp. 2d 791 (N.D. Ohio 2002). In that case, the court considered 
whether a student's First Amendment rights were violated when he created a website 
at home, containing a "losers" list of three fellow students, with several insulting 
sentences written under each student's picture. The creator later accessed his own 
website in class on a school computer, in violation of the school's internet use policy, 
but apparently never showed the site to any other students, and no evidence showed 
that any students ever saw the site. The court characterized it as a "private viewing of 
his own website." Id. at 799. While the court found that Tinker's substantial disruption 
standard would apply to such expression, and found that accessing the website had no 
effect upon the "school district's ability to maintain discipline in the school," the court 
found that there was a material issue of fact on the motive of the school's subsequent 
discipline of Coy — the content of his website or a violation of the school's internet 
policy. The court refused to grant summary judgment for either party. Id. at 801. 

7 Some commentators define cyberbullying broadly as the "use of information and 
communication technologies ... to support deliberate, repeated, and hostile behavior 
by an individual or group that is intended to harm others." Darryn Cathryn Beckstrom, 
State Legislation Mandating School Cyberbullying Policies and the Potential Threat to 


In Beverly Hills, Judge Stephen Wilson meticulously outlined 
Supreme Court student speech cases, as well as application of 
those decisions by lower courts, including several of the cases 
involving the Internet. He determined that the substantial 
disruption standard established in Tinker v. Des Moines 
Independent Community School District 8 "applies to both on- 
campus and off-campus speech," yet ultimately found insufficient 
evidence of substantial disruption, or any foreseeable risk thereof, 
despite the vitriolic name-calling and profanity that caused the 
targeted student severe emotional distress and anxiety about 
attending class. 9 

The Internet creates a challenging environment in which 
children's rights of privacy and free speech do not easily co-exist. 
And, since the "well-being of children depends to a large extent on 
their rights and protections under the law," 10 both rights need 
clear constitutional parameters. The challenge is to balance a 
child's right to be let alone with a child's equally compelling right 
of freedom of expression. 11 Although the rights are those of the 
child, 12 protecting those rights supposes an obligation on the part 
of others — parents or the state. 13 Outside school, parents may 

Students' Free Speech Rights, 33 Vt. L. REV. 283, 286 (2008) (emphasis added). 
However, there is, as Renee Servance points out, an important distinction between 
"cyberbullying," which is the use of the Internet by students to bully peers, and "cyber- 
harassment," which is use of the Internet by students to harass adult members of the 
school community. Renee L. Servance, Cyberbullying, Cyber-harassment, and the 
Conflict Between Schools and the First Amendment, 2003 Wis. L. REV. 1213, 1219 
(2003); see also Willard, supra note 4 (arguing that the opinion in Beverly Hills went 
"off-track" because of "the limited legal guidance related to the constitutionality of a 
school response when a student is bullying, or being verbally aggressive, towards 
another student"). 

8 393 U.S. 503 (1969). 

9 Beverly Hills, 711 F. Supp. 2d at 1108. 

10 See Joan Catherine Bohl & Christine Metteer Lorillard, Children and 
the Law: The Competing Rights, Privileges, and Interests of Children, 
Parents, and the State ix (2010). 

11 See Alison King, Constitutionality of Cyberbullying Laws: Keeping the Online 
Playground Safe for Both Teens and Free Speech, 63 VAND. L. REV. 845, 846 (2010); 
Servance, supra note 7, at 1224. 

12 See Cynthia Price Cohen, The Developing Jurisprudence of the Rights of the 
Child, 6 St. Thomas L. Rev. 1, 19 (1993). 

13 See Elisa Poncz, Rethinking Child Advocacy After Roper v. Simmons; "Kids are 
Just Different" and "Kids are Like Adults" Advocacy Strategies, 6 CARDOZO PUB. L. 


protect their children, and in fact, have a constitutional right to 
discretion in raising their children. 14 But at school, during school 
hours, or off campus after hours during school-sponsored events, 
parents may not be able to defend the rights of their children. In 
these instances, under the doctrine of parens patriae, the state, 
often in the form of its public schools, is the "fallback" for the 
family and has an interest in the welfare of its children, an 
interest in promoting and protecting a child's best interests. 15 

To that end, several Acts have been proposed to protect 
children from online harassment and bullying. In 2000, the 
Children's Internet Protection Act (CIPA) was enacted by 
Congress to address: 

[C]oncerns about access to offensive content over the Internet 
on school and library computers. CIPA imposes certain types 
of requirements on any school or library that receives funding 
for Internet access or internal connections from the E-rate 
program - a program that makes certain communications 
technology more affordable for eligible schools and libraries. 16 

Yet similar regulation has drawn criticism as an abridgement to 
First Amendment rights. 17 In 1998, the Child Online Protection 
Act (COPA) was created but quickly blocked by federal courts as 
an unconstitutional infringement of speech. 18 

POL'Y & ETHICS J., 273, 276 (2008); Lee E. Teitelbaum, Children's Rights and the 
Problem of Equal Respect, 27 HOFSTRA L. REV. 799, 805 (1999). 

14 In Layshock v. Hermitage School District, parents of a student disciplined for 
creating a fake internet profile of the principal of his school filed a Due Process claim 
against the school, alleging that the school's punishment of their son interfered with 
their "parental right of determining how best to raise, nurture, discipline and educate 
their child." 593 F.3d 249, 255 (3d Cir. 2010). However, the Third Circuit ultimately 
found that the parents' Due Process rights had not been violated. Id. at 264; see also 
Duffy B. Trager, New Tricks for Old Dogs: The Tinker Standard Applied to Cyber- 
Bullying, 38 J. L. & EDUC 553, 556 (2009); Poncz, supra note 13, at 281. 

15 BOHL & LORILLARD, supra note 10, at x; see also Poncz, supra note 13, at 281 
(citing the state's obligation to act in children's best interests by setting limits on 
curfew, driving, smoking, etc.). 

16 Guide: Children's Internet Protection Act, FED. COMMS. COMMISSION, (last visited Oct. 10, 2011). 

17 See, e.g., Lendman, supra note 2. 

18 See id. ("In 1998, the Child Online Protection Act (COPA) passed, but was 
blocked by federal courts as an infringement of free speech and therefore 


The Internet, therefore, has created a dilemma for schools, 
which are charged with protecting students from predatory 
practices and inappropriate content while also honoring students' 
First Amendment rights to freedom of expression. 19 Are schools 
that punish "cyber-bullying" by one student directed at another 
student in violation of that student's First Amendment right of 
free expression when such expression originates off campus? Or is 
the state, through its schools, acting in its parens patriae capacity 
to protect "the most comprehensive of rights and the right most 
valued by civilized men," namely, "the right to be let alone," 20 — in 
this instance a student's right to be free from bullying that has 
had devastating consequences? 21 Additionally, every child has a 
"state-created property right to an education," 22 and any 
expression that interferes with a student's "educational 
performance" 23 and the right to feel secure while receiving her 

unconstitutional and unenforceable. In 1999, the law was struck down at the Appellate 
Court level, but it stayed on the books. In 2002, the Supreme Court reviewed the ruling 
and returned the case for reconsideration. It remained blocked. Then in March 2003, 
the Appellate Court again ruled it unconstitutional on the grounds that it would hinder 
protected adult speech . . . ."). 

19 Kathryn S. Vander Broek, Steven M. Puiszis, & Evan D. Brown, Schools and 
Social Media: First Amendment Issues Arising from Student Use of the Internet, 21 No. 
4 INTELL. PROP. & TECH. L.J. 11, 11 (2009). Renee Servance also notes that schools can 
be sued for inaction in the case of student against student harassment, citing 
Columbine as an example. Servance, supra note 7, at 1215; see also Trager, supra note 
14, at 560 (citing Title IX liability imposed for a school's failure to address cyber- 
bullying in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999)). 

20 Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). 

21 See generally Beckstrom, supra note 7, at 284 (citing several instances of student 
victims of cyber-bullying committing suicide). The problem is so pervasive, that at the 
time of this writing, a new suicide has been reported, albeit by a university student: 
"NEW BRUNSWICK, N.J. (CBS/AP) Tyler Clementi committed suicide Sept. 22, 
apparently after discovering that his Rutgers University roommate, Dharun Ravi, and 
friend Molly Wei, live-streamed Clementi in a sexual encounter with another male 
student without his knowledge, a lawyer for the Clementi family announced late 
Wednesday." Carlin DeGuerin Miller, Tyler Clementi Suicide: Lawyer Confirms 
Student's Suicide, Molly Wei and Dharun Ravi Face Charges for Sex Tape, CBS NEWS 
(Sep. 29, 2010, 6:54 PM), 

22 Martha McCarthy, Student Expression That Collides With The Rights of Others: 
Should the Second Prong of Tinker Stand Alone? 240 EDUC. L. REP. 1, 15 (2009). The 
Supreme Court has found a "property interest in educational benefits." Goss v. Lopez, 
419 U.S. 565, 576 (1975). 

23 Saxe v. State College Area Sch. Dist., 240 F.3d 200, 215 (3d Cir. 2001). 


education 24 must be balanced against First Amendment protection 
for internet expression about another student, created off campus 
but making its way onto campus. 

The Supreme Court has yet to consider a case involving 
student speech online, either on or off campus, 25 but the Court has 
set some parameters. First, the Court begins with the premise 
that children are "clearly persons" 26 entitled to constitutional 
protection. As such, the Supreme Court declared in In re Gault, 
that "neither the Fourteenth Amendment nor Bill of Rights is for 
adults alone." 27 Subsequently, in Tinker, a case that has been 
extolled as the "zenith of children's rights," 28 the Court upheld 
students' First Amendment rights to wear black armbands to 
school in protest of the Vietnam war, stating that "students [do 
not] . . . shed constitutional rights ... at the schoolhouse gate." 29 
However, students have shed at least one right "at the 
schoolhouse gate." By virtue of their confinement to the custodial 
control of others, in this instance compulsory school attendance 
required by the states, students are deprived of a liberty interest 
guaranteed to all adults by the Due Process Clause. 30 As Emily 
Buss has observed, such a considerable diminution of personal 
rights should perhaps indicate an enhancement of children's other 
rights while within the schoolhouse gate. 31 

24 Willard, supra note 4, at 4. 

25 Vander Broek et al., supra note 19, at 12 (observing that "existing Supreme 
Court decisions involve . . . fundamentally different forms of media and arose in a 
markedly different context"). An additional wrinkle is that parental and state's 
interests in the child may collide: many take the position that off-campus speech is a 
matter for parental discipline; others argue that criminal or tort action is the remedy 
for off-campus bullying. See Pike, infra note 32, at 990. 

26 Levy v. Louisiana, 391 U.S. 68, 70 (1968) (internal quotation marks omitted). 

27 In re Gault, 387 U.S. 1, 13 (1967). 

28 Sarah H. Ramsey & Douglas E. Abrams, Children and the Law in a 
Nutshell 22 (2d ed. 2003). 

29 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). 

30 Emily Buss, Constitutional Fidelity Through Children's Rights, 2004 SUP. Ct. 
REV. 355, 362 (2005). The Supreme Court, in Bethel School District No. 403 v. Fraser, 
recognizes that parents and schools, in loco parents, need to protect school children 
that are "a captive audience." 478 U.S. 675, 684 (1986). The Ninth Circuit explained 
that school children are a "captive audience" because of "mandatory attendance 
requirements." Harper v. Poway Unified Sch. Dist., 445 F.3d 1166, 1178 (9th Cir. 

31 Buss, supra note 30, at 362. 


The problem, as has often been observed, is that cyberspace 
blurs just where schoolhouse gates are 32 and which children they 
enclose, and "the Internet has literally (and legally) moved the 
schoolhouse gate to a student's home computer." 33 It is at this 
point that children's rights collide: a child engaging in otherwise 
protected expression off campus and from a non-school-owned 
computer would seem to have a solid First Amendment right to 
engage in such expression. However, when that expression makes 
its way onto campus, either intentionally brought there by the 
creator or foreseeably arriving there because the expression is 
about another student or member of the school community whom 
the speaker would not otherwise have known, 34 the Internet has 
created what has been called an on-campus "telepresence." 35 In 
such an instance, the courts must decide whether a pure right of 
free speech for off-campus expression takes precedence over a 
child's need for enhanced protection of her privacy right to be let 
alone, given the diminished right of liberty imposed by compulsory 
school attendance. In other words, when a child is exposed to 
cyber-bullying that was created off campus but reaches campus, 
and cannot shun the schoolhouse because the state requires her 
attendance, does the state, in the form of its schools, have the 
power to protect her privacy right by punishing her bullier? 36 

Schools have been afforded authority over other off-campus 
conduct, such as assault, 37 directing "fighting" words at a teacher 

32 See Kenneth R. Pike, Locating the Mislaid Gate: Revitalizing Tinker by 
Repairing Judicial Over generalizations of Technologically Enabled Student Speech, 
2008 BYU L. Rev. 971, 973 (2008). 

33 Vander Broek et al., supra note 19. at 12. 

34 Renee L. Servance observes that most students create websites because of the 
relationships formed in school. "If the parties had not attended the same school the 
speech would not likely exist." Servance, supra note 7, at 1237. 

35 Pike, supra note 32, at 973. 

36 Susan P. Stuart, Fun With Dick and Jane and Lawrence: A Primer on 
Educational Privacy as Constitutional Liberty, 88 MARQ. L. Rev. 563, 631 (2004) 
(Education occurs in a public setting that "challenges individual autonomy and respect 
for student's privacy."). 

37 Pollnow v. Glennon, 594 F. Supp. 220 (S.D.N.Y. 1984); Nicholas B. v. Sch. 
Comm. of Worcester, 587 N.E.2d 211 (Mass. 1992). 


in a public place, 38 and even publishing a poem in a public paper 
that ridiculed a school and its functions. 39 Additionally, the 
Supreme Court has allowed abridgement of First Amendment 
rights when a true threat is made. 40 Student expression may be 
regulated and punished in five instances: when it occurs on 
campus and causes a substantial disruption 41 or collides with the 
rights of others, 42 when it occurs on campus and is lewd, vulgar, 
and offensive, 43 when it occurs on campus and bears the 
imprimatur of the school, 44 or when it occurs on campus and 
promotes drug use. 45 

However, a gray area exists 46 when the speech is not 
expressly threatening or when students have engaged in the 

ss Fenton v. Spear, 423 F. Supp. 767, 769 & 773 (W.D. Pa. 1976) (school had 
authority to punish student who loudly called his teacher "a prick" in front of him in a 
public parking lot). 

39 State ex rel. Dresser v. Dist. Bd., 116 N.W. 232 (Wis. 1908). 

40 A true threat is one of the nine basic categories of unprotected speech. See Emily 
Gold Waldman, Regulating Student Speech: Suppression Versus Punishment, 85 IND. 
L.J. 1113, 1119 n.46 (2010). 

41 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513. This is the test 
used almost exclusively in internet expression cases to date. 

42 Id. at 514. 

43 Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 696 (1986). 

44 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988). 

45 Morse v. Frederick, 551 U.S. 393 (9th Cir. 2007). 

46 See, e.g., Dave Barry, Third Circuit Vacates Decisions in Pair of Cases Involving 
Off-campus Online Student Speech and Grants Rehearing, DREAM BELIEVE (Apr. 16, 
2010, 12:55 AM), Barry summarized: 

On April 10, 2010, the U.S. Court of Appeals for the Third Circuit (PA, 
NJDE, VI) granted the motions for rehearing en banc in J.S. ex rel. v. Blue 
Mountain School District and Layshock v. Hermitage School District. Both 
cases involve students who were disciplined for using social networking sites 
to create parody profiles of a school official on an off-campus computer. In 
Blue Mountain, a three-judge panel split 2-1, ruling that a Pennsylvania 
school district did not violate a student's free speech rights when it 
disciplined her for creating, off campus, an online parody profile of her 
principal. In Layshock, on the other hand, a separate three-judge panel 
unanimously ruled that a Pennsylvania school district violated the free 
speech rights of a high school student who was disciplined for creating, off- 
campus, a parody online profile of the school's principal. 


As this Article was being prepared for publication, the Third Circuit handed 
down decisions in both cases that find the student's First Amendment rights violated 
because the speech was created off campus and caused no substantial disruption on 


speech outside of school walls, about people within them, 
foreseeably causing the speech to come onto campus. As Robert 
O'Neil, director of the Thomas Jefferson Center for the Protection 
of Free Expression, observed: 

[W]hen a true threat is made, and when speech is made using 
school computers, schools have clear authority to regulate 
students' speech. But when something falls in the gray area 
between an expressed threat and mere teasing, and students 
are accessing the Internet outside the school's walls, 
administrators are faced with a tricky calculus. 47 

In fact, the Second Circuit realized that "[i]f courts and legal 
scholars cannot discern the contours of First Amendment 
protections for student internet speech, then it is certainly 
unreasonable to expect school administrators ... to predict where 
the line between on- and off-campus speech will be drawn in this 
new digital era." 48 In the end, which students will have to "shed 
their . . . rights ... at the schoolhouse gate" is left in question, 
depending on the characterization of the speech as on-campus 
speech — governed by the four Supreme Court student speech 
cases — or off-campus speech; although the Court in Tinker also 
noted that a student's First Amendment right to free speech — at 
least on campus — may not "colli [de] with the rights of other 
students to be secure and to be let alone." 49 

What is now needed in order to uniformly and consistently 
protect both the rights of the speaker and the rights of the target 
is law directly focused on internet expression, especially 
expression created off campus but creating a "telepresence" on 
campus by targeting fellow students. Schools and courts should no 
longer have to guess at the constitutional parameters, or 
determine what is a "substantial" enough disruption before 
punishing students who cyber-bully. Proving that student internet 

campus. Layshock v. Hermitage Sch. Dist., 650 F.3d 205 (3d Cir. 2011) (en banc); J.S. 
ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915 (3d Cir. 2011) (en banc); see 
also infra note 373. 

47 See Kim, supra note 4 (quoting Robert O'Neil, director of Thomas Jefferson 
Center for the Protection of Free Expression). 

« Doninger v. Niehoff, 594 F. Supp. 2d 211, 224 (D. Conn. 2009). 

49 Tinker, 393 U.S. at 506, 508. 


expression created off campus is a true threat to a fellow student 
should not be the only way to preserve another child's right to be 
let alone. 50 

Part I of this Article considers the four Supreme Court cases 
governing student speech, as well as precedent governing the 
more amorphous right of privacy. Part II considers the lower 
courts' application of these precedents in the eleven student 
internet expression cases and attempts to synthesize their 
principles for regulating student off-campus cyber-expression. 
Part III considers the first case of a student-upon-student cyber- 
attack, J.C. ex rel. R.C. v. Beverly Hills Unified School District, 
and attempts to place it within the parameters established by the 
earlier Internet cases to consider the propriety of the opinion. This 
Article's Conclusion considers possible solutions to cases falling 
into the "gray area" of protected speech and concludes that courts 
must reconsider Tinker's substantial disruption requirement as 
the only test in student-on-student cyber-bullying cases. When off- 
campus cyber expression is shown to have a sufficient "nexus" to 
the school in the form of being intentionally carried there by the 
creator, or foreseeably making its way onto campus because its 
target is a fellow student and it contains prurient content 
intended to attract student viewers, it should be viewed as on- 
campus speech that may be considered under any of the Supreme 
Court's exceptions to protected student speech, in order to protect 
against a "collision with the rights of other students to be secure 
and to be let alone." 51 

50 Another student-on-student internet expression case arose in the Los Angeles 
area at the same time as Beverly Hills. In D.C. v. R.R., 106 Cal. Rptr. 3d 399 (Ct. App. 
2010), the Second District California Court of Appeal considered the cyber-expression 
under a "true threat" analysis in the context of an anti-SLAPP (strategic lawsuit 
against public participation) statute intended to protect free speech, finding that such 
expression was never protected speech under the First Amendment and remanding to 
allow the hate crime suit to proceed, circumventing any necessity of protected speech 
within the schoolhouse gates. 

51 Tinker, 393 U.S. at 508. 


I. Competing Rights— Privacy vs. Free Speech 

A. The Right of Privacy 

The right of privacy — for adults as well as for children — is an 
amorphous one, not specifically enumerated in the Bill of Rights 
but thought to come within its "penumbra." 52 But the right of 
privacy has, from its inception, been invoked in the context of new 
technologies that whittled away at personal rights. Louis Brandeis 
first discussed the concept in 1890 within the context of a recent 
innovative technology of the time, "[i]nstantaneous photographs," 
which allowed newspapers to publish photos and comments of 
individuals without first obtaining their consent. 53 In a passage 
that could be about the Internet, Brandeis wrote: 

The press is overstepping in every direction the obvious 
bounds of propriety and of decency. Gossip is no longer the 
resource of the idle and of the vicious, but has become a trade, 
which is pursued with industry as well as effrontery. To 
satisfy a prurient taste the details of sexual relations are 
spread broadcast in the columns of the daily papers .... The 
intensity and complexity of life, attendant upon advancing 
civilization, have rendered necessary some retreat from the 
world, and man, under the refining influence of culture, has 
become more sensitive to publicity, so that solitude and 
privacy have become more essential to the individual; but 
modern enterprise and invention have, through invasions 
upon his privacy, subjected him to mental pain and distress, 
far greater than could be inflicted by mere bodily injury. 54 

Years later, after becoming a Justice on the Supreme Court, 
Brandeis discussed the right to privacy in his dissent in Olmstead 

52 Griswold v. Connecticut. 381 U.S. 479, 483 (1965) ("[T]he First Amendment has 
a penumbra where privacy is protected from governmental intrusion. . . . [S]pecific 
guarantees in the Bill of Rights have penumbras, formed by emanations from those 
guarantees that help give them life."). 

53 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 
193, 195 (1890). 

54 Id. at 196. Susan P. Stuart has found this article to "set out the rudiments of 
privacy as a positive, nearly quantifiable, concept for limiting the intrusion of 
technology . . . ." Stuart, supra note 36, at 593. State courts and legislatures soon 
adopted the concept. 


v. United States, a case that upheld the right of Elliot Ness and 
his untouchables to wiretap the private telephone lines of 
bootleggers as long as it was done at a point between the 
defendants' homes and their offices, 55 again in response to a new 
technology. Brandeis stated: 

The makers of our Constitution undertook to secure 
conditions favorable to the pursuit of happiness. They 
recognized the significance of man's spiritual nature, of his 
feelings and of his intellect .... They conferred . . . the right 
to be let alone — the most comprehensive of rights and the 
right most valued by civilized men. 56 

William Prosser later recognized that the law of privacy 
comprises four distinct kinds of invasion of four different interests 
of an individual: 

(1) Intrusion upon the plaintiffs seclusion or solitude, or into 
his private affairs [;] (2) Public disclosure of embarrassing 
private facts about the plaintiff[;] (3) Publicity which places 
the plaintiff in a false light in the public eye[;] and (4) 
Appropriation, for the defendant's advantage, of the plaintiffs 
name or likeness. 57 

In discussing the second, he observed that it was something "quite 
distinct from intrusion. The interest protected is that of 
reputation, with the same overtones of mental distress that are 
present in libel and slander. It is in reality an extension of 
defamation . . . ," 58 He warned, however, that the law of privacy 
was not intended "for the protection of any shrinking soul who is 
abnormally sensitive about such publicity. It is quite a different 
matter when the details of sexual relations are spread before the 
public gaze, or there is highly personal portrayal of his intimate 
private characteristics or conduct." 59 

55 Olmstead v. United States, 277 U.S. 438 (1928). 

56 Id. at 478 (1928) (Brandeis, J., dissenting). 

57 Prosser, supra note 1, at 389. 

58 Id. at 398. 

59 Id. at 397. 


But it is generally agreed that the Supreme Court recognized 
a constitutional right of privacy for the first time in Griswold v. 
Connecticut, where the Court held that Connecticut's birth-control 
law, which made it a crime for anyone to give out information or 
instructions on the use of birth-control devices, intruded upon the 
right of marital privacy and reproductive rights. 60 The Court 
observed that "[w]e have had many controversies over these 
penumbral rights of 'privacy and repose' . . . [but many] cases bear 
witness that the right of privacy which presses for recognition 
here is a legitimate one." 61 

However, the right of privacy and the right to be let alone, 
while guaranteed to adults, are not necessarily co-extensive with 
the rights of children in public school. The Court has found that 
school children have a "liberty interest in [their] reputation," 
which is not "insubstantial," 62 but also recognized the need to 
"strike [a] balance between the schoolchild's legitimate 
expectations of privacy and the school's equally legitimate need to 
maintain an environment in which learning can take place . . . ," 63 

Thus, the Court abridged a child's Fourth Amendment rights, 
finding that a school's search of a student's purse must only be 
reasonable under the circumstances and is not dependent upon 
establishing probable cause. 64 The Court has also found that 
random drug testing as a requirement for interscholastic athletics 
did not violate a schoolchild's Fourth Amendment rights because 

60 381 U.S. 479, 485 (1965). 

61 Id. (citations omitted). 

62 Goss v. Lopez, 419 U.S. 565, 576 (1975) (finding school suspensions imposed for 
less than good cause may violate that interest). 

63 New Jersey v. T.L.O., 469 U.S. 325, 340 (1985). 

64 Id. at 341. The Court stated: 

[T]he accommodation of the privacy interests of schoolchildren with the 
substantial need of teachers and administrators for freedom to maintain 
order in the schools does not require strict adherence to the requirement that 
searches be based on probable cause to believe that the subject of the search 
has violated or is violating the law. Rather, the legality of a search of a 
student should depend simply on the reasonableness, under all the 
circumstances, of the search. 



the invasion of her privacy was "negligible." 65 The Court reasoned 
that "while children assuredly do not shed their constitutional 
rights ... at the schoolhouse gate . . . the nature of those rights is 
what is appropriate for children in school." 66 

Parents, as part of their right to discretion in bringing up 
their children, also have the right and responsibility to invade a 
child's zone of privacy to protect their children or to provide them 
medical attention. The Supreme Court recognized that in these 
instances parents are "prime decision-makers." 67 

But even this right is not absolute, as the Court has carved 
out a narrow zone of privacy for a child mature enough to make a 
decision her parents would otherwise make for her. This "mature 
minor doctrine" arose in Belotti v. Baird, which found a mature 
minor's right of privacy demanded that she be allowed to make 
her own abortion decision. 68 Justice Stevens' concurrence pointed 
out that "[t]he constitutional right to make the abortion decision 
affords protection to both of the privacy interests recognized in 
this Court's cases: 'One is the individual interest in avoiding 
disclosure of personal matters, and another is the interest in 
independence in making certain kinds of important decisions.'" 69 
The Court, however, has never broadened that zone of privacy in 
medical decision-making beyond abortion. 

These kinds of decisions by parents and the state have been 
found by the United Nations' Convention on the Rights of the 

66 Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 658 (1995); see also Bd. of Educ. 
of Indep. Sch. Dist. v. Earls, 536 U.S. 822 (2002) (upheld random urinalysis policy for 
competitive extracurricular activities beyond athletics). 

66 Id. at 656 (citation and internal quotation marks omitted). 

67 Parham v. J.R., 442 U.S. 584, 602 (1979) ("The law's concept of the family rests 
on a presumption that parents possess what a child lacks in maturity, experience, and 
capacity for judgment required for making life's difficult decisions. More important, 
historically it has recognized that natural bonds of affection lead parents to act in the 
best interests of their children."). 

68 443 U.S. 622 (1979). The Court found that when the state requires parental 
consent to a minor's abortion, the minor has the right to prove that "(1) that she is 
mature enough and well enough informed to make her abortion decision, in 
consultation with her physician, independently of her parents' wishes; or (2) that even 
if she is not able to make this decision independently, the desired abortion would be in 
her best interests." Id. at 643-44. 

69 Id. at 655. 


Child (CRC) to be part of a child's broad right to protection. 70 The 
CRC, which has been called the "gold standard" 71 and heralded as 
"a landmark in the history of childhood," 72 has never been ratified 
by the United States, although it has been observed that the 
United States is "substantially in compliance ... [at both the 
federal and] state level." 73 Article 16 of the CRC provides that 
"Children have a right to privacy. The law should protect them 
from attacks against their way of life, their good name, their 
families and their homes." 74 The CRC also provides in Article 13 
that "Children have the right to get and to share information, as 
long as the information is not damaging to them or to others." 15 
These two articles seem to set up the Privacy versus Free Speech 
tension that off-campus internet expression imposes. Only a few 
cases seem to do so. 

In West Virginia State Board of Education v. Barnette, a pre- 
Tinker case, the Supreme Court discussed the concept of the 
rights of school children in the context of a possible "collision" of 
rights that Tinker eventually forbids. 76 In this case, Barnette and 
others sought an injunction to restrain enforcing a regulation 
requiring children in public schools to salute the American flag, 
when Children of the Jehovah's Witness faith had "been expelled 
from school and . . . [were] threatened with exclusion for no other 
cause." 77 The Supreme Court found that the appellees' decision 
not to salute the flag or recite the pledge did "not bring them into 
collision with rights asserted by any other individual." 78 The 
Court reasoned that "the refusal of these persons to participate in 
the ceremony does not interfere with or deny rights of others to do 

70 See BOHL & LORILLARD, supra note 10, at ix. 

71 S. Randall Humm et al., Introduction to CHILD, PARENT, AND STATE: LAW AND 

Policy Reader at xv (1994). 

72 Michael Freeman, Introduction to CHILDREN'S RIGHTS: A COMPARATIVE 
PERSPECTIVE 1 (Michael Freeman ed., 1996). 

73 Susan Kilbourne, The Convention on the Rights of the Child: Federalism Issues 
for the United States, 5 GEO. J. ON FIGHTING POVERTY 327, 329 (1998). 

74 U.K. Comm. for UNICEF, Children's Rights and Responsibilities (1991), 

available at 

75 Id. (emphasis added). 

76 319 U.S. 624, 630 (1943). 

77 Id. 

78 Id. at 630. 


so ... . The latter stand on a right of self-determination in matters 
that touch individual opinion and personal attitude." 79 

In a passage recalling Brandeis' paean to the right of privacy 
in his Olmstead dissent, 80 the Court found that "the action of the 
local authorities in compelling the flag salute and pledge 
transcends constitutional limitations on their power and invades 
the sphere of intellect and spirit which it is the purpose of the 
First Amendment to our Constitution to reserve from all official 
control." 81 In a concurring opinion, Justice Murphy reasoned that 
the benefits to society from the compulsory flag salute were not 
"sufficiently definite and tangible to justify the invasion of 
freedom and privacy that it entailed or to compensate for a 
restraint on the freedom of the individual to be vocal or silent 
according to his conscience or personal inclination." 82 

In another pre-Tinker case, the Fifth Circuit applied Barnette 
and foreshadowed Tinker** in a discussion of behavior at school 
that caused "a collision with the rights of others." 84 In Blackwell v. 
Issaquena County Board of Education, thirty students at "the all- 
Negro" Henry Weathers High School wore "freedom buttons to 
class." 85 The small "buttons depict[ed] a black and white hand 
joined together with 'SNCC [Student Nonviolent Coordinating 
Committee] inscribed in the margin." 86 According to school 
officials, some of the students created a disturbance in the 
hallways when they were scheduled to be in class. 87 Three 
students were brought to the principal's office and told that no one 

79 Id. at 630-31. 

80 Brandeis wrote of the Constitution's recognition of the "significance of man's 
spiritual nature, of his feelings and of his intellect." Olmstead v. United States, 277 
U.S. 438, 478 (1928) (Brandeis, J., dissenting). 

81 Barnette, 319 U.S. at 642. 

82 Id. at 646. (Murphy, J., concurring). 

83 Tinker held that a student's First Amendment right of free speech was not 
protected if the speech created a substantial disruption or caused a "collision with the 
rights of other students." Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 
508 (1969). 

84 Blackwell v. Issaquena Cnty. Bd. of Educ, 363 F.2d 749, 754 (5th Cir. 1966). 

85 Id. at 750. 

86 Id. 

87 Id. at 751. 


could be permitted to create a disturbance and that they would 
have to remove their buttons. 88 

The following Monday, approximately 150 students came to 
school wearing the buttons. 89 These students distributed buttons 
in the corridor of the school building and accosted other students 
by pinning the buttons on them, causing a younger student to 
cry. 90 This activity disrupted class instruction and resulted in a 
general breakdown of orderly discipline. 91 After the principal 
assembled the students in the cafeteria and informed them that 
they were forbidden to wear the buttons at school, the students 
became hostile and discourteous. 92 

The next day, close to 200 students appeared wearing buttons 
and were told that if they returned to school again wearing 
buttons they would be suspended. 93 The following day, the 
students returned to school wearing the buttons and the principal 
immediately sent them home. 94 As the students gathered their 
books to go home, some invaded classes, ignoring the teachers, 
and invited others to join them. 95 

Parents of the suspended children met with the 
superintendent and the principal, but no agreement was ever 
reached. 96 Those children who continued to remain at home after 
a period of twenty days were suspended for the balance of the 
school year. 97 

A mandatory preliminary injunction was sought to compel 
school officials to re-admit the suspended pupils and to allow them 
to wear freedom buttons so long as no disturbance resulted, but 
the injunction was denied. 98 On appeal, the Fifth Circuit 
considered whether the school regulation forbidding the wearing 
of freedom buttons was a "reasonable rule necessary for the 

88 Id. 

89 Id. 
99 Id. 

91 Id. 

92 Id. 

93 Id. 

94 Id. 

95 Id. at 751-52. 

96 Id. at 752. 

97 Id. 

98 Id. 


maintenance of school discipline or an unreasonable rule which 
infringes on the students' right to freedom of speech guaranteed 
by the First Amendment of the United States Constitution." 99 

The court began by noting that it was within the province of 
school authorities to prohibit and punish acts calculated to 
undermine the school routine, which it stated was "not only proper 
. . . but . . . necessary." 100 The court characterized the case as one 
that involved "regulations limiting freedom of expression and the 
communication of an idea which are protected by the First 
Amendment," and presented "serious constitutional questions," 
which demanded keeping in mind the fundamental constitutional 
rights of those being affected. 101 

The court found that the Constitution "does not confer 
'unrestricted and unbridled license giving immunity for every 
possible use of language and preventing the punishment of those 
who abuse this freedom."' 102 However, it opined that the interests 
the regulation sought to protect must be "fundamental and 
substantial if there is to be a restriction of speech." 103 

The court contrasted Barnette, in which the Supreme Court 
was careful to note that the students' refusal to participate in the 
salute and pledge "did not interfere with or deny rights of others 
to do so and the behavior involved was 'peaceable and orderly.'" 104 
In Blackwell, the Fifth Circuit found there was "an unusual 
degree of commotion, boisterous conduct, a collision with the 
rights of others, an undermining of authority, and a lack of order, 
discipline and decorum." 105 Reasoning that the "proper operation 
of public school systems is one of the highest and most 
fundamental responsibilities of the state," yet warning that 

99 Id. 

100 Id. at 753. 

101 Id. 

102 Id. at 754 (citation omitted). 

103 Id. Of interest here is Judge Kozinski's characterization of "the 'rights of others' 
language in Tinker" as referring only to "traditional rights, such as those against 
assault, defamation, invasion of privacy, extortion and blackmail, whose interplay with 
the First Amendment is well established." Harper v. Poway Unified Sch. Dist., 
445 F.3d 1166, 1198 (9th Cir. 2006) (Kozinski, J., dissenting) (emphasis added). 

104 Blackwell, 363 F.2d at 754 (citing W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 
624, 631 (1943)). 

105 Id. 


"school officials should be careful in their monitoring of student 
expression in circumstances in which such expression does not 
substantially interfere with the operation of the school," the court 
upheld the district court's denial of the injunction based on the 
"abundance of clear, convincing and unequivocal testimony" in the 
case. 106 As such, this decision, handed down three years before 
Tinker, seemed to anticipate and apply both its tests — the court 
found both a substantial disruption and a collision with the rights 
of others — presumably their privacy right to be left alone. 

B. The First Amendment Right of Free Speech for School 


The parameters of the right of free speech guaranteed to 
students emerged three years later in Tinker v. Des Moines 
Independent Community School District. 107 In Tinker, three 
students wore black armbands to school to protest the Vietnam 
War. 108 The school responded by adopting a policy forbidding such 
armbands and asked the students to remove them. 109 The 
students refused and were suspended. 110 The district court 
refused to grant the students' request for an injunction restraining 
school officials from disciplining them. 111 The Eighth Circuit 
upheld the order, but the Supreme Court reversed. 112 

Citing Barnette, the Court found that wearing the armbands 
to express political views was protected by the First Amendment 
and was in no way "actually or potentially disruptive conduct 
. . . ." but was "closely akin to 'pure speech' which ... is entitled to 
comprehensive protection under the First Amendment." 113 

106 Id. But see Burnside v. Byars, 363 F.2d 744, 746-49 (1966). Burnside was decided 
simultaneously by the Fifth Circuit, and held that a high school regulation prohibiting 
students from wearing "freedom buttons," which had the words "One Man One Vote" 
and "SNCC" and which did not appear to hamper the school in carrying out its regular 
schedule of activities, was arbitrary and unreasonable, and an unnecessary 
infringement on students' protected right of free expression. Id. 

i° 7 393 U.S. 503 (1969). 

">8 Id. at 504. 

109 Id. 

110 Id. 

111 Id. at 504-05. 

112 Id. at 505. 

113 Id. 


Recognizing that students do not "shed their constitutional rights 
to freedom of speech or expression at the schoolhouse gate," 114 the 
Court found that "the prohibition of expression of one particular 
opinion, at least without evidence that it is necessary to avoid 
material and substantial interference with schoolwork or 
discipline, is not constitutionally permissible." 115 

Citing both Blackwell v. Issaquena County Board of 
Education and Burnside v. Byars, the Court reasoned that a 
student may express opinions at school as long as they do not: 

[Materially and substantially interfere] with the 
requirements of appropriate discipline in the operation of the 
school' and without colliding with the rights of others. But 
conduct by the student, in class or out of it, which for any 
reason-whether it stems from time, place, or type of behavior- 
materially disrupts classwork or involves substantial disorder 
or invasion of the rights of others is, of course, not immunized 
by the constitutional guarantee of freedom of speech. 116 

Because the Court found nothing in the record that might have led 
school officials to forecast "substantial disruption of or material 
interference with school activities," the Court reversed. 117 

The Tinker Court therefore set out two exceptions to on- 
campus expression otherwise protected by the First Amendment. 
Such expression will not be protected if it causes, or foreseeably 
will cause, a substantial disruption of school activities (the test 
applied in Tinker itself), or if it collides with the rights of others. 
Although the two exceptions carved out by the Court were clearly 
written to be disjunctive, 118 lower courts have seldom applied the 

114 Id. at 506. 

115 Id. at 511. 

116 Id. at 513 (citing Blackwell v. Issaquena Cnty. Bd. of Educ, 363 F.2d 749, 749 
(5th Cir. 1966); Burnside, 363 F.2d at 749). 

117 Id. at 514. 

118 McCarthy, supra note 22, at 7 (citing Harper v. Poway Unified School District, 
445 F.3d 1166 (2006), vacated 549 U.S. 1262 (2007), as concluding that "both prongs of 
the Tinker principle stand alone"). The court in Beverly Hills similarly said that the 
collision with the rights of others test exists "[i]n addition to the substantial disruption 
test." J.C. ex rel. R.C. v. Beverly Hills Unified Sch. Dist, 711 F. Supp. 2d 1094, 1122 


second prong alone. 119 The district court in Beverly Hills declined 
to do so because the "precise scope" of Tinker's "rights of others" 
language was unclear. 120 However, by referring specifically to 
Barnette, Blackwell, and Burnside as the source of the "collision 
with the rights of others" test, the Court was certainly thinking of 
a collision with the privacy rights of another student or teacher, as 
outlined in those cases. 121 

The Supreme Court was to create three more exceptions to 
on-campus protected expression after those specified in Tinker 
itself. In Bethel School District No. 403 v. Fraser, the Court held 
that a school district acted within its permissible authority in 
imposing sanctions upon a student in response to his "offensively 
lewd and indecent speech" given during a school assembly of 
nearly 600 students. 122 The speech was "an elaborate, graphic . . . 
sexual metaphor," for which the student was suspended. 123 The 
record showed that "students appeared to be bewildered and 
embarrassed by the speech," and one teacher had "to forgo a 
portion of the scheduled class lesson in order to discuss the speech 
with the class." 124 

The Court reasoned that unlike the sanctions imposed on the 
students wearing armbands in Tinker, the penalties imposed in 
this case were not for political speech. 125 The Court found: 

119 The court in Nixon v. Northern Local School District, 383 F. Supp. 2d 965 (2005), 
was urged to do so, but declined because of lack of precedent. See McCarthy, supra note 
22, at 6-7. However, a year later, the Ninth Circuit, in Harper v. Poway Unified School 
District, applied Tinkers second test and concluded that a student wearing a T-shirt to 
school proclaiming "HOMOSEXUALITY IS SHAMEFUL," had violated the rights of 
others, forfeiting any constitutional protection of that expression. 445 F.3d at 1178. 

120 Beverly Hills, 711 F. Supp. 2d at 1122. The court declined to "extendQ the Tinker 
rights of others prong so far as to hold that a school may regulate any speech that may 
cause some emotional harm to a student." Id. at 1123; accord Bowlet v. Town of 
Hudson, 514 F. Supp. 2d 168, 176 (finding the precise scope of Tinker's "rights of 
others" language "unclear"); see also Bonnie A. Kellman, Tinkering with Tinker: 
Protecting the First Amendment in Public Schools, 85 NOTRE DAME L. REV. 367, 368 
(2009) ("Neither Tinker nor any other Supreme Court case [gives] lower courts any real 
guidance about exactly when certain speech 'collides] with the rights of other students 
to be secure and to be let alone.'"). 

121 See supra notes 76-105 and accompanying text. 

122 Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986). 

123 Id. at 678. 

124 Id. 

I2 s Id. at 685. 


The First Amendment does not prevent the school officials 
from determining that to permit a vulgar and lewd speech . . . 
would undermine the school's basic educational mission. A 
high school assembly or classroom is no place for a sexually 
explicit monologue directed towards an unsuspecting 
audience of teenage students .... [V]ulgar speech and lewd 
conduct is wholly inconsistent with the "fundamental values" 
of public school education. 126 

Justice Brennan concurred, explaining that if Fraser had 
given the same speech off campus he could not have been 
penalized "simply because government officials considered his 
language to be inappropriate." 127 However, students may properly 
be reprimanded for expression that school officials conclude 
disrupted the school's educational mission. 128 Ultimately, the 
Court found that the "determination of what manner of speech in 
the classroom or in school assembly is inappropriate properly rests 
with the school board." 129 

Many courts have read Fraser as merely allowing schools to 
prohibit "the 'manner' of speech that is offensive, not the 
viewpoint expressed." 130 In this context, Justice Brennan's 
observation would seem to indicate that the content of the speech 
was protected, but the type of speech — that is, lewd, vulgar, and 
offensive speech intentionally presented on campus — was not. 
Fraser thus seems to limit its holding to "offensive formfs] of 
expression" and "vulgar and offensive terms" specifically delivered 

126 Id. at 685-86. 

127 Id. at 688 (Brennan, J., concurring). 

128 Id. 

i 29 Id. at 683. 

130 Cindy Lavorato & John Saunders, Public High School Students, T-Shirts and 
Free Speech: Untangling the Knots, 209 EDUC. L. Rep. 1, 14 (July 2006) (surveying 
court interpretations of Fraser). In Morse v. Frederick, the Supreme Court itself 
admitted that "[t]he mode of analysis employed in Fraser is not entirely clear. The 
Court was plainly attuned to the content of Fraser's speech .... But the Court also 
reasoned that school boards have the authority to determine 'what manner of speech in 
the classroom or in the school assembly is inappropriate."' 551 U.S. 393, 404 (2007) 
(quoting Fraser, 478 U.S. at 683). The Court did not attempt to "resolve the debate," in 
Morse. Id.; see also Joanna Nairn, Free Speech 4 Students: Morse v. Frederick and the 
Inculcation of Values in Schools, 43 HARV. C.R.-C.L. L. REV. 239, 241 (2008). 


on campus. 131 Perhaps for these reasons, only one court has been 
willing to extend Fraser to expression with its inception off 
campus, even if that expression subsequently makes its way onto 
campus and causes equivalent or even greater embarrassment. 132 

However, Fraser steps back from Tinker in that the Court did 
not require a "substantial disruption" within the school to bring 
the speech outside constitutional protection. 133 The Court, without 
so stating, recognized that school children have a right not to be 
held captive to speech that "bewilder [s] and embarrass [es]" 
them. 134 In so doing, as Renee Servance points out, "the Court 
recognized the necessity of balancing the right to free speech with 
the goal of protecting the rights of others where speech causes 
harm. In sum, Fraser protected the rights of others." 135 For these 
reasons, Fraser has often been thought to be the closest match for 
cyber-bullying cases. 136 

The next exception to on-campus protected expression came 
in Hazelwood School District v. Kuhlmeier, in which the Court 
upheld the right of a principal to remove two articles from the 

131 Fraser, 478 U.S. at 683. 

132 In J.S. v. Bethlehem Area School District, the court found that there was a 
"sufficient nexus" between a website created by a student off campus that made vulgar, 
profane, and threatening comments about a particular teacher and the school campus 
to consider the speech as occurring on campus. 807 A.2d 847, 865 (Pa. 2002). Once that 
"threshold question" had been answered in the affirmative, the court found that the 
case before it "straddled" the political speech in Tinker, and the lewd and plainly 
offensive speech in Fraser. Id. at 866. The court then applied first Fraser and then 
Tinker's substantial disruption test, and found both satisfied. Id. at 868-69. The district 
court in J.S. ex rel. Snyder v. Blue Mountain School District, applied Fraser and held 
that the off-campus expression could be restricted "because the lewd and vulgar off- 
campus speech had an effect on campus." 2008 WL 4279517, at *7. However, the Third 
Circuit declined to decide whether Fraser could be applied to such off-campus speech. 
J.S. ex rel. Snyder v. Blue Mountain Sch. Dist, 593 F.3d 286 (3d Cir. 2010). But see 
Bowler v. Town of Hudson, 514 F. Supp. 2d 168 (D. Mass. 2007) (refusing to apply 
Fraser to speech that did not make it way onto campus); Doninger v. Niehoff, 527 F.3d 
41, 49 (2d Cir. 2008) ("It is not clear, however, that Fraser applies to off-campus 

133 The Court in Morse v. Frederick found that the holding in Fraser was not based 
on any showing of substantial disruption, and therefore stated that the "mode of 
analysis" set forth in Tinker was "not absolute." 551 U.S. 393, 405 (2007). 

134 Fraser, 478 U.S. at 678. 

135 Servance, supra note 7, at 1229. 

136 Bethlehem, 807 A.2d at 868 (finding that if the court were to solely apply Fraser, 
it would have "little difficulty in upholding the School District's discipline"). 


school's newspaper about teen pregnancy and divorce. 137 The 
Court found that the issue before it was different from that in 
Tinker, which considered whether the First Amendment requires 
a school to tolerate particular student speech. 138 The question 
before the Court in Hazelwood was whether the First Amendment 
requires a school affirmatively to promote particular student 
speech, such that it would bear the "imprimatur of the school." 139 

The Court found that educators are entitled to exercise 
greater control over school-sponsored student expression "to 
assure that participants learn whatever lessons the activity is 
designed to teach, that readers or listeners are not exposed to 
material that may be inappropriate for their level of maturity, and 
that the views of the individual speaker are not erroneously 
attributed to the school." 140 The Court therefore held that 
"educators do not offend the First Amendment by exercising 
editorial control over the style and content of student speech in 
school-sponsored expressive activities so long as their actions are 
reasonably related to legitimate pedagogical concerns." 141 
However, because Hazelwood particularly limited its decision to 
expression not merely tolerated but promoted through school- 
sponsored media, the decision has had little application to off- 
campus cyber-bullying cases. 142 

In its most recent decision, and one many hoped would revisit 
Tinker in light of the computer age, 143 the Court considered the 
reach of the schoolhouse gates within which student expression 

137 484 U.S. 260 (1988). 

138 Id. at 270-71. 

139 Id. 

140 Id. 

141 Id. at 273. 

142 See generally King, supra note 11, at 868. 

143 See Martha McCarthy, Student Expression Rights: Is a New Standard in the 
Horizon?, 216 EDUC. L. REP. 15, 15 (2007) ("[T]he Frederick decision provides a vehicle 
for the Court to reinforce or alter the legal principles governing public school students' 
free expression rights."). McCarthy and others had for some time felt that "clarification 
is needed as to when student expression has to be disruptive to be censored and 
whether expression that conflicts with the school's mission can be curtailed in the 
absence of a threat of disruption." Id. at 30. To that end, there was some hope of a 
"broad interpretation of the limitations imposed by Fraser" extending it to off-campus 
speech. Id. 


was protected unless it provoked a "substantial disruption" or 
collided with "the rights of others." 144 In Morse u. Frederick, the 
Court considered the case of Joseph Frederick who, along with 
fellow students, attended the Olympic Torch Relay that passed 
along a public street in front of the school. 145 The principal 
allowed students to leave class to attend the relay; Frederick was 
apparently late that day, however, and went directly to join his 
friends on the street in front of the school. 146 While waiting for the 
torch to arrive, he unfurled a fourteen-foot banner that read, 
"BONG HiTS 4 JESUS," apparently to attract television 
attention. 147 The banner was clearly visible to students across the 
street. 148 The school principal asked Frederick to take the banner 
down, he refused, and she confiscated the banner and suspended 
Frederick. 149 

Because the incident occurred on a public street, and at a 
time when classes were not in session, Frederick argued that this 
was not a school speech case. 150 Echoing lower court decisions that 
asked for clear definition of students' First Amendment rights for 
off-campus speech, 151 the Court admitted that "[t]here is some 
uncertainty at the outer boundaries as to when courts should 

144 Tinker v. Des Moines Indep. Cmty. Sch. Dist, 393 U.S. 503, 513 (1969). 

145 Morse v. Frederick, 551 U.S. 393, 397 (2007). 

1 46 Id. 

147 Id. 

148 Id. at 397. 

149 Id. 

150 Id. at 400. 

151 See, e.g.. J.S. v. Bethlehem Area Sch. Dist, 807 A.2d 847 (Pa. 2002). The court in 
Bethlehem stated: 

Unfortunately, the United States Supreme Court has not revisited this area 
for fifteen years. Thus, the breadth and contour of these cases and their 
application to differing circumstances continues to evolve. Moreover, the 
advent of the Internet has complicated analysis of restrictions on speech .... 
Indeed, Tinker's simple armband, worn silently and brought into a Des 
Moines, Iowa classroom, has been replaced by J.S.'s complex multi-media web 
site, accessible to fellow students, teachers, and the world. 

Id. at 863-64. Because of this, the Court determined that although "lower courts, in the 
context of internet communication, have focused on Tinker ... we are not convinced 
that reliance solely on Tinker is appropriate." Thus, the court applied both Fraser and 
Tinker to the case and found both standards satisfied. Id. at 867. 


apply school speech precedents." 152 Nevertheless, the Court 
treated Frederick's expression, which was decidedly off campus in 
both its inception and display, as on-campus speech because its 
creator brought the banner to a school-sponsored event and 
displayed it in front of other members of the school community 
during regular school hours. 153 In perhaps the first Supreme 
Court opinion to enclose geographically off-campus expression 
within the schoolhouse gates, the Court reasoned that, "Frederick 
cannot stand in the midst of his fellow students, during school 
hours, at a school-sanctioned activity and claim he is not at 
school." 154 

Once it determined that the expression was on-campus 
speech, the Court neither applied Tinker's "substantial disruption" 
test, nor reviewed and revised it, as some had guessed was the 
Court's reason for granting certiorari. 155 The Court simply stated 
that the Tinker standard was "not absolute." 156 Nor, as the Court 
admitted, did it apply Hazelwood, because it found no basis for 
concluding that the banner bore the "school's imprimatur." 157 The 
Court also refused to apply Fraser, which it found "should not be 
read to encompass any speech that could fit under some definition 
of 'offensive.'" 158 The Court determined that the concern was "not 
that Frederick's speech was offensive, but that it was reasonably 
viewed as promoting illegal drug use." 159 The Court looked to the 
"special characteristics of the school environment," 160 and the 

"» Morse, 551 U.S. at 401. 

153 Id. The Wisniewski court summarized the finding in Morse: 

Since the Supreme Court in Morse rejected the claim that the student's 
location, standing across the street from the school at a school approved event 
with a banner visible to most students, was not 'at school,' it had no occasion 
to consider the circumstances under which school authorities may discipline 
students for off-campus activities. 

Wisniewski v. Bd. of Educ, 494 F.3d 34, 39 n.3 (2d Cir. 2007) (citation omitted). 

154 Morse, 551 U.S. at 401 (internal quotation marks omitted). 

155 McCarthy, supra note 22, at 15. 

156 Morse, 551 U.S. at 405. 

157 Id. 

158 Id. at 409. 

159 Id. 

160 Id. at 408 (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 
506 (1969)). 


"governmental interest in stopping student drug abuse," 161 in 
finding that "[t]he First Amendment does not require schools to 
tolerate at school events student expression that contributes to 
those dangers." 162 

In its factually narrow holding, the Court used, arguably for 
the first time, what has been called "content-based regulation," 
which targets a particular viewpoint as undeserving of First 
Amendment protection. 163 The Court held that "a principal may, 
consistent with the First Amendment, restrict student speech at a 
school event, when that speech is reasonably viewed as promoting 
illegal drug use." 164 

The Court was highly divided, however, containing four 
separate opinions. The three dissenting Justices agreed that the 
principal should not be held liable for confiscating the banner, but 

[T]he school's interest in protecting its students from 
exposure to speech reasonably regarded as promoting illegal 
drug use, cannot justify disciplining Frederick for his attempt 
to make an ambiguous statement to a television audience 
simply because it contained an oblique reference to drugs. The 
First Amendment demands more, indeed, much more. 165 

In other words, the dissenters did not dispute the majority's 
content-based regulation of student speech but questioned 
whether the banner actually was promoting drug use. 

The Court, therefore, clearly permitted content-based 
regulation in limited circumstances. 166 However, from its first 
student speech decision in Tinker, the Court has expressed fears 
that schools might become "enclaves of totalitarianism" 167 or 

161 Id. 

162 Id. at 410. 

163 See Nairn, supra note 130, at 247. 

164 Morse, 551 U.S. at 403. 

165 Id. at 434 (Stevens, J., dissenting) (internal quotation marks omitted). 

166 The decision in Morse has been called a "significant philosophical departure" for 
the Court. Nairn, supra note 130, at 246. It signals "acceptance of a more inculcative 
approach to education and will likely extend beyond the intended context of non- 
political, pro-drug messages." Id. 

167 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511 (1969). 


perpetrate "an official suppression of ideas," and even Fraser 
demonstrates the Court's reluctance to allow too much content- 
based regulation of speech in schools. 168 

II. The Internet-Expression Cases: Students Targeting 
School Administrators and Teachers 

As shown above, the Supreme Court's quartet of student 
speech cases provide no clear method for determining students' 
First Amendment rights for speech originating off campus via the 
Internet but eventually coming onto campus. As a result, lower 
courts often grapple with which standard to apply. When 
analyzing student expression under Tinkers, substantial 
disruption test, the courts frequently engage in a highly fact- 
specific analysis of exactly what a "substantial disruption" looks 
like. This has resulted in opinions so divergent that in April of 
2010, the Third Circuit vacated two of its opinions, handed down 
just two months earlier, by two different panels of judges, because 
of seemingly contradictory decisions on remarkably similar 
facts. 169 

Interestingly, in the pure internet-expression cases (as 
opposed to forms of other student expression originating off 
campus and making its way on campus, or anti-harassment policy 
cases), the earliest opinions upheld the First Amendment rights of 
the student under Tinker without considering the fact that the 
expression originated off campus. 170 In 1998, in Beussink v. 
Woodland R-TV School District, Brandon Beussink created a 
homepage on his personal computer at home and posted it on the 

168 Nairn, supra note 130, at 246 (quoting Bd. of Educ. v. Pico, 457 U.S. 853, 871 

169 Compare Layshock v. Hermitage Sch. Dist., 593 F.3d 249 (3d Cir. 2010), with 
J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 593 F.3d 286 (3d Cir. 2010). Even at the 
district court level, Martha McCarthy observed that, "It is somewhat difficult to 
reconcile the outcome in [Layshock] and the more recent reasoning in J.S. v. Blue 
Mountain . . . ." McCarthy, supra note 22, at 13. The en banc rehearing occurred June, 
3, 2010. As this Article went into production, the Third Circuit issued opinions 
upholding the students' First Amendment challenges in both cases. Layshock v. 
Hermitage Sch. Dist., 650 F.3d 205 (3d Cir. 2011) (en banc); J.S. ex rel. Snyder v. Blue 
Mountain Sch. Dist., 650 F.3d 915 (3d Cir. 2011) (en banc); see also infra note 373. 

170 I treat the cases in order of the final judgments on appeal to the federal circuit 
court or state high court. 


Internet. 171 Brandon's website was highly critical of his school's 
administration, contained crude and vulgar language conveying 
his opinions of the teachers, and provided a link to the school's 
website, through which he invited readers to contact the school 
and communicate their opinions. 172 Brandon testified that he did 
not intend for his website to be viewed at school — he just wanted 
to voice his opinion. 173 However, when he allowed a friend to use 
his home computer, she inadvertently, and without Brandon's 
authorization or knowledge, discovered his website. 174 When that 
friend later became angry with Brandon, she accessed the 
homepage during school hours and showed it to her computer 
teacher; there was no evidence that any other student saw the 
page, and there was no further disturbance at that time, although 
during the day, many other students viewed the homepage. 175 
Brandon was suspended immediately upon the principal learning 
of the website. 176 

The district court applied Tinker's substantial disruption 
standard and found that Brandon's suspension violated his First 
Amendment rights. 177 The court reasoned that a school official 
must be able to show more than a "mere desire to avoid the 
discomfort and unpleasantness that always accompany an 
unpopular viewpoint." 178 Even allowing that under Tinker the fear 
of disruption could render Brandon's expression unprotected, the 
court stated that the fear must be reasonable and not an 
"undifferentiated fear" of disturbance. 179 The court found that the 
principal's decision to suspend Brandon immediately upon 
learning of the incident indicated that he disciplined Brandon 
because he was "upset" by the content and not because he feared a 
disruption. 180 In sum, the court stated that "[d]isliking or being 

171 30 F. Supp. 2d 1175, 1177 (E.D. Mo. 1998). 

172 Id. The court found it important that the link worked both ways; Brandon's 
homepage could also be accessed from the school's homepage. Id. at 1177 n.l. 

173 Id. 

174 Id. at 1178. 

175 Id. at 1178-79. 

176 Id. at 1179. 

177 Id. at 1180. 

178 Id. 

"9 Id. 

180 Id. 


upset by the content of a student's speech is not an acceptable 
justification for limiting student speech under Tinker." 181 

Two years later, in Emmett v. Kent School District, a district 
court again applied Tinker's substantial disruption standard to 
uphold a student's First Amendment rights. 182 In this case, Nick 
Emmett posted a website on the Internet from home that 
contained commentary about the school's faculty and 
administration, along with a "warning" that the site was not 
school-sponsored and was for entertainment only. 183 The website 
contained mock obituaries of several of Emmett's friends, written 
tongue-in-cheek and apparently inspired by a creative writing 
assignment to create one's own obituary. 184 The obituaries became 
a topic of discussion at school, and Emmett eventually allowed 
visitors to the website to vote on who would "die" next — that is, be 
the subject of the next obituary. 185 However, a few days later an 
evening television news story reported that Emmett had created a 
"hit list," causing Emmett to remove the site. 186 He was 
subsequently suspended. 187 

The district court found both Fraser and Hazelwood 
inapplicable as the case did not involve speech at a school 
assembly or school-sponsored speech, and thus applied Tinker's 
substantial disruption standard. 188 As in Beussink, the court 
found that the expression could not be based on "undifferentiated 
fears of disturbances or embarrassment to school officials." 189 
Since the expression was in no way connected with school classes 
or projects, and neither threatened nor intimidated anyone, nor 
ever intended to do so, the court found the speech "entirely outside 
the school's supervision or control." 190 

lg i id. 

182 92 F. Supp. 2d 1088 (W.D. Wash. 2000). 

183 Id. at 1089. 
i 84 Id. 

185 Id. 

186 Id. 

187 Id. 

188 Id. at 1090. 

189 Id. 

190 Id. 


A year later, in Killion v. Franklin Regional School District, 
yet another district court upheld a student's First Amendment 
rights. 191 The student, Zachariah Paul, compiled on his home 
computer a lewd and vulgar "Top Ten" list about the school's 
athletic director's personal appearance, which he emailed to 
friends but did not otherwise bring to school because he had been 
disciplined for doing so with similar lists in the past. 192 However, 
another student later copied the list and brought it to school, 
where it was found in the teachers' lounge. 193 Paul was 
subsequently suspended for "verbal/written abuse of a staff 
member." 194 

The student, through his mother, Joanne Killion, filed a 
motion for summary judgment alleging that the school had no 
authority over off-campus speech. 195 Tbe school also filed for 
summary judgment, alleging that the speech was lewd and 
offensive and, because distributed on campus, had the potential of 
causing substantial disruption, 196 essentially invoking both Fraser 
and Tinker. After considering the (then) three Supreme Court 
cases, and recognizing that there was "limited case law" on the 
issue, 197 the court refused to apply Fraser to expression having its 
inception off campus, quoting Justice Brennan's reasoning that "if 
. . . [the student] had given the same speech outside the school 
environment, he could not have been penalized simply because 
government officials considered his language to be 
inappropriate." 198 The court therefore applied Tinkers substantial 
disruption test and found that the speech was not threatening and 

191 136 F. Supp. 2d 446 (W.D. Pa. 2001). 

192 Id. at 448. 

193 Id. at 448-49. 

194 Id. at 449. 

195 Id. at 450. 

196 Id. 

197 Id. at 454. The court considered Beussink, Emmett, and the lower court opinion 
in J.S. v. Bethlehem Area School District, 757 A.2d 412 (Pa. Commw. Ct. 2000). See 
also infra notes 210-32 and accompanying text (discussing the 2002 Pennsylvania 
Supreme Court case affirming the lower court's decision). 

198 Id. at 456 (quoting Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 688 (1986) 
(Brennan, J., concurring)). It is interesting to wonder what the Killion court might 
have made of Morse. There the banner was clearly created off campus and unfurled in 
a public street, but still deemed on-campus speech. 


there was no evidence of actual disruption since the list was on 
school grounds for several days before the administration became 
aware of it and at least a week before they took action. 199 The 
court cited Beussink and reiterated that "[djisliking or being upset 
by the content" of student speech is not sufficient to limit it under 
Tinker. 200 

In 2002, the federal district courts continued the string of 
decisions upholding a student's First Amendment rights in 
Mahaffey v. Aldrich. 201 In this case, Joshua Mahaffey contributed 
to a website created by another student entitled "Satan's web 
page." 202 The students alleged that they created and contributed 
to the site because they were bored and wanted something to 
d 203 The site, among other things, listed "people I wish would 
die," "people that are cool," and near the bottom, "SATAN'S 
MISSION FOR YOU THIS WEEK," asking readers to "stab 
someone . . . throw them off a cliff . . ." then stating, "Killing 
people is wrong . . . don't do it unless I'm there to watch," then, 
ON ME. OK?" 204 Another student's parent notified the police 
about the website, who notified the school, who then suspended 
Mahaffey. 205 

In considering the competing motions for summary judgment 
filed by the student and the school, the court rejected the school's 
contention that the expression on the website constituted a true 
threat, and as such was not protected by the First Amendment. 206 
The court reasoned that because Mahaffey had stated that the 

199 Id. at 455. 

200 Id. (quoting Beussink v. Woodland R-IV Sch. Disk, 30 F. Supp. 2d 1175, 1180 
(E.D. Mo. 1998)). 

201 236 F. Supp. 2d 779 (E.D. Mich. 2002). Mahaffey was actually decided two 
months after the Pennsylvania Supreme Court decided J.S. v. Bethlehem Area School 
District, but since the court apparently had not read the decision, referring only to the 
lower court decision in Bethlehem. I will treat Mahaffey first in order to highlight the 
string of federal district court cases upholding students' First Amendment rights. 

202 Id. at 781. 

203 Id. 

204 Id. at 782 (typographical errors in original eliminated). 

205 Id. 

206 Id. at 785-86. 


website was created "for laughs," he had not intended others to 
see it and never communicated it to them, and in fact, made no 
specific threat against any individual or group, no "reasonable 
person" would construe the statements on the webpage as a true 
threat. 207 Thus, the court applied Tinker, and distinguished the 
appellate level decision in J.S. v. Bethlehem Area School 
District 208 on the fact that there was no evidence of disruption in 
the case before it, without further discussion. 209 

It was not until September of 2002, in J.S. v. Bethlehem Area 
School District, that the Supreme Court of Pennsylvania became 
the first court to render a final decision finding student internet 
expression occurring off campus to lack First Amendment 
protection. 210 In Bethlehem, the student, J.S., created a website on 
his home computer and posted it on the Internet. 211 The website, 
entitled "Teacher Sux," consisted of several pages of "derogatory, 
profane, offensive and threatening" comments, pictures, 
animation, and sound clips, primarily about his algebra 
teacher. 212 

The most striking page was captioned "Why Should She Die," 
and solicited $20 from readers to help pay for a "hitman." 213 
"Ultimately students, faculty and administrators of the [s]chool 
. . . [saw] the website after J.S. told other students about the site 
and even showed it to another student at school." 214 The principal 
took the threats seriously, and informed the algebra teacher. 215 
She was frightened and suffered stress, anxiety, loss of appetite 
and weight, short-term memory loss, headaches, and an inability 
to go out of the house, resulting in her being unable to return to 

207 Id. at 786. Mahaffey claimed that he created the website just "for laughs" and 
had not intended for others to see it. Id. The court's decision was also influenced by the 
fact that Mahaffey's website made no specific threat against any individual or group. 

208 J.S. v. Bethlehem Area Sch. Dist, 757 A.2d 412 (Pa. Commw. Ct. 2000). 

209 Mahaffey. 236 F. Supp. 2d at 785. The Pennsylvania Supreme Court later 
affirmed the commonwealth court's decision. 

210 807 A.2d 847, 869 (Pa. 2002). 

211 Id. at 850. 

212 Id. at 851. 

213 Id. 

214 Id. at 851-52. 

215 Id. at 852. 


school to finish out the year. 216 The school was forced to hire three 
substitute teachers to replace her, the morale of the students was 
at an all-time low, and a counselor compared it to "the death of a 
student or staff member." 217 

The school took no action against J.S. until the end of the 
year, where at that time they suspended and voted to expel J.S., 
whose parents had by then enrolled him at an out-of-state school 
for the next year. 218 Both the Court of Common Pleas and the 
Commonwealth Court upheld the expulsion. 219 J.S. appealed to 
the Supreme Court of Pennsylvania, who granted allocator to 
"review the issue of whether the Commonwealth Court erred in its 
conclusion that the School District did not violate J.S.'s First 
Amendment rights by punishing him for the posting of the 
'Teacher Sux' web site." 220 

After an extensive discussion of First Amendment 
jurisprudence, the court first determined that the website 
expression contained no true threat, although it was viewed as 
one by the teacher and initially treated as one by the school. 221 
Looking at the overall circumstances, the court reasoned that the 
website was "a sophomoric, crude, highly offensive and perhaps 
misguided attempt at humor or parody . . . [and] it did not reflect 
a serious expression of intent to inflict harm." 222 The court 
reasoned that because the website focused primarily on the 
teacher's "physique and disposition" and used cartoon characters, 
hand drawings, song, and a comparison to Adolph Hitler, and 
because the school continued to allow J.S. to attend class and 
extracurricular activities and had only commenced discipline well 
after the conclusion of the school year, the school's position that 
the website contained a true threat was severely undermined. 223 

The court then considered the website in light of the Supreme 
Court's First Amendment exceptions for otherwise protected 

216 Id. 

217 Id. 

218 Id. at 852-853. 

219 Id. at 853. 

220 Id. 

221 Id. at 859-60. 

222 Id. at 859. 

223 Id. at 859-60. 


student speech. In order to do so, however, the court addressed as 
a "threshold issue" the location of the speech, because J.S. argued 
that it was purely off-campus speech not governed by any of the 
school speech cases. 224 The court determined that there was a 
"sufficient nexus" between the off-campus expression and the 
school to consider the speech as occurring on campus because J.S. 
accessed the site at school, on a school computer, and showed it to 
another student. 225 

The court recognized that, although the few courts that had 
considered internet communication had focused on Tinker in their 
analysis (citing Beussink, Emmett, and Killion), the expression 
before it "straddle [d] the political speech in Tinker, and the lewd 
and offensive speech expressed at an official school assembly in 
Fraser." 226 Recognizing that the Supreme Court had "not revisited 
this area for fifteen years," the court noted that "the breadth and 
contour of these cases and their application to differing 
circumstances continues to evolve," and that "the advent of the 
Internet has complicated analysis of restrictions on speech. 
Indeed, Tinkers simple armband, worn silently and brought into a 
Des Moines, Iowa classroom, has been replaced by J.S.'s complex 
multi-media web site, accessible to fellow students, teachers, and 
the world." 227 

Because of this, the court was not convinced that reliance on 
Tinker alone was appropriate, although it had been the path taken 
by earlier internet cases. 228 The court stated that it did not need 
to determine whether the facts called for application of Fraser, to 
be "governed by the lewd and plainly offensive speech analysis," or 
Tinker, and thus "subject to review for substantial disruption of 
the work of the school," because "application of either case results 
in a determination in favor of the School District." 229 The court 
found that punishing the use of lewd, vulgar, and plainly offensive 
expression "fits easily within Fraser's upholding of discipline for 

224 Id. at 864. 

223 Id. at 865. 

226 Id. at 866-67. 

227 Id. at 863-64. 
22 » Id. at 867. 
229 Id. 


speech that undermines the basic function of a public school .... 
[W]ere we to solely apply Fraser, we would have little difficulty in 
upholding the School District's discipline." 230 Additionally, the 
court found a substantial disruption of the work of the school as 
shown by the teacher's physical and emotional injuries, the need 
to hire substitute teachers, and the low morale throughout the 
school, comparable to a death. 231 

Bethlehem's dual analysis under Fraser and Tinker has not 
been repeated, 232 but its discussion of a "threshold issue" 
concerning the nexus of the expression and the school campus, 
and subsequent Tinker analysis, began a trend for courts to 
uphold school restriction and punishment of off-campus speech if 
brought onto campus and creating a substantial disruption. In 
2007, the Second Circuit upheld a school's right to discipline a 
student in Wisniewski v. Board of Education. 233 In that case, 
Aaron Wisniewski created an Instant Messaging icon, from his 
parents' home computer, to identify himself in IM messages. 234 
Aaron's icon was a small drawing of a pistol firing a bullet at a 
person's head, above which were dots representing splattered 
blood, and the words, "Kill Mr. VanderMolen," Aaron's English 
teacher. 235 Aaron sent the icon to several friends but not to Mr. 
VanderMolen. 236 Eventually, another student printed out the icon 
and gave it to Mr. VanderMolen, who was "distressed" and took it 
to the principal, who then notified the police and suspended 
Aaron. 237 

The court first refused to consider the icon as a true threat, 
finding "that school officials have significantly broader authority 
to sanction student speech than the [Supreme Court's true threat] 
standard allows." 238 The court instead found the Tinker standard 
applicable, but first followed the Pennsylvania Supreme Court's 

230 Id. at 868. 

231 Id. at 869. 

232 See supra note 132. 

233 494 F.3d 34 (2d Cir. 2007). 

234 Id. at 35. 

235 Id. at 36. 

236 Id. 

237 Id. 

238 Id. at 38. 


lead and considered whether there must be a "nexus" between the 
icon and the school campus. 239 The court was "divided as to 
whether it must be shown that it was reasonably foreseeable that 
Aaron's IM icon would reach the school property or whether the 
undisputed fact that it did reach the school pretermits any inquiry 
as to this aspect of reasonable foreseeability." 240 They were in 
agreement, however, that the content of the expression made it 
"reasonably foreseeable that the IM icon would come to the 
attention of school authorities and the teacher whom the icon 
depicted being shot." 241 Therefore, the court applied Tinker and 
found the icon "crossefd] the boundary of protected speech and 
constitute [d] student conduct that poses a reasonably foreseeable 
risk that the icon would come to the attention of school authorities 
and that it would 'materially and substantially disrupt the work 
and discipline of the school."' 242 

A year later, the Second Circuit again upheld a school's right 
to punish off-campus student speech that had a sufficient nexus 
with the campus in Doninger u. Niehoff. 243 In Doninger, Avery 
Doninger sent an email to students and parents at her school and 
posted a message on her blog criticizing the school for cancelling 
the school's "Jamfest," and encouraging recipients to contact 
school administrators to complain. 244 The school administrators 
received an influx of telephone calls and emails, and continued to 
receive them after Avery posted another message on her blog 
calling the administrators "douchebags" and urging readers to 
continue to call to "piss [the administrators] off." 245 As a result of 
the controversy, the administrators were forced to miss, or arrived 
late to, several school activities over several days. 246 After 
eventually discovering her blog, the school determined that Avery 

239 Id. at 38-39. 

240 Id. at 39. 

241 Id. The court reasoned that "[a]s in Morse, the student . . . was not disciplined for 
conduct that was merely 'offensive' . . . ." Id. at 40. 

242 Id. at 38-39 (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 
513 (1969)). 

243 527 F.3d 41 (2d Cir. 2008). 

244 Id. at 44-45 

245 Id. 

246 Id. at 46. 


should not be allowed to run for class secretary and did not allow 
her to accept the position when she won as a write-in candidate. 247 

The court found that had Avery's expression occurred in the 
classroom, it would have fallen within Fraser, but refused to apply 
Fraser, which it found did not apply to expression created off 
campus. 248 Therefore, the court applied Tinker and its rule from 
Wisniewski "that a student may be disciplined for expressive 
conduct, even conduct occurring off school grounds, when this 
conduct 'would foreseeably create a risk of substantial disruption 
within the school environment,' at least when it was similarly 
foreseeable that the off-campus expression might also reach 
campus." 249 The court held, as it had in Wisniewski, that the 
posting foreseeably created a risk of substantial disruption. 250 

A few months later, in O.Z. v. Board of Trustees, the District 
Court for the Central District of California upheld the suspension 
and involuntary transfer of a student who created a slideshow, 
distributed on YouTube, which depicted the killing of her English 
teacher. 251 The teacher uncovered the video after performing a 
Google search for her name. 252 She was upset, became ill, could 
not sleep, and eventually informed the principal of the video, who 
suspended the student and sought to transfer her to another 
school. 253 

The court found Tinker's substantial disruption standard 
applicable and likened the case to Wisniewski. 254 Although the 
student argued that the video was a joke and she had no intent to 
communicate it to her teacher, the court found that since the 
student had shared the video with her friend, and given the 
content of the video, it was reasonable to predict that it would 
make its way onto campus, as it eventually did. 255 Once on 
campus, the court found it "reasonable, given the violent language 

247 Id. 

248 Id. at 49-50. 

249 Id. at 48 (quoting Wisniewski v. Bd. of Educ, 494 F.3d 34, 40 (2d Cir. 2007)). 

250 Id. at 53. 

251 No. 08-5671, 2008 WL 4396895, at *1 (CD. Cal. Sept. 9, 2008). 

252 Id. at *1. 

253 jd. 

254 Id. at *2. 

255 Id. at *4. 


and unusual photos depicted in the slide show, for school officials 
to forecast substantial disruption of school activities." 256 
Therefore, the court did not consider whether the school could 
satisfy the more difficult true threat test. 257 

Although these four cases seemed to set a pattern and 
indicate a trend to use an expression's content to predict whether 
the expression would come to campus and cause or portend a 
substantial disruption, three decisions handed down in 2010 call 
that into question. 258 On February 4, 2010, two different three- 
member panels of the Third Circuit issued opinions in two 
cases, 259 upholding earlier district court rulings in Lay shock v. 
Hermitage School District 260 and J.S. ex rel. Snyder u. Blue 
Mountain School District. 261 The lower courts in each of these two 
cases reached different holdings on substantially similar facts 
involving students who were disciplined for using an off-campus 
computer to create an internet parody profile of a school official. 
One significant difference in the district court opinions was that 
the court in Layshock refused to bring the case under Fraser, 
finding that the Supreme Court's exception to the general Tinker 
substantial disruption rule was limited to lewd, vulgar, or 

256 Id. at *3. 

257 Id. 

258 The dissent in the en banc rehearing of J.S. ex rel. Snyder v. Blue Mountain 
School District agreed that the decision of the court "causes a split with the Second 
Circuit." 650 F.3d 915, 950 (3d Cir. 2011) (en banc) (Fisher, J., dissenting). 

259 Layshock v. Hermitage Sch. Dist., 593 F.3d 249 (3d Cir. 2010); J.S. ex rel. Snyder 
v. Blue Mountain Sch. Dist., 593 F.3d 286 (3d Cir. 2010). On April 9, the Third Circuit 
vacated both decisions and granted rehearing en banc, which occurred June 3, 2010. 
Ostensibly, the court granted the rehearing to reconcile its holdings, and seemed to do 
so in the en banc opinions of June 13, 2011. See Layshock v. Hermitage Sch. Dist., 650 
F.3d 205 (3d Cir. 2011) (en banc); J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 
F.3d 915 (3d Cir. 2011) (en banc). The Third Circuit's en banc opinions occurred after 
this Article was submitted for publication, and thus are referenced, but not expanded 
upon here. See infra note 373. However, the district court in J.C. ex rel. R.C. v. Beverly 
Hills Unified School District amended its Nov. 16, 2009 opinion after these two cases 
were affirmed in February 2010, "solely to address these Third Circuit opinions . . . ." 
711 F. Supp. 2d 1094, 1095 n.l (CD. Cal. 2010). Thus, I discuss them here as they 
informed the California district court's opinion. 

260 Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587 (W.D. Pa. 2007). 

261 J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., No. 3:07cv585, 2008 WL 4279517 
(M.D. Pa. Sept. 11, 2008). 


offensive expression on campus. 262 The court then found no 
sufficient "nexus" between the speech and any disruption at 
school, and concluded that any disruption that might have 
occurred was "minimal." 263 The district court in Blue Mountain, 
on the other hand, while noting the similarity to the facts of 
Layshock, 264 determined that it had to look beyond Tinker for its 
answer, 265 and ultimately found that the expression was not 
protected because it was lewd and offensive speech like that in 
Fraser and promoted illegal actions as in Morse. 266 Thus, the court 
held that "as vulgar, lewd, and potentially illegal speech that had 
an effect on campus, we find that the school did not violate the 
plaintiffs rights in punishing her for it even though it arguably 
did not cause a substantial disruption of the school." 267 

In the Third Circuit's review of Layshock, a three-judge panel 
unanimously ruled that a Pennsylvania school district violated the 
free speech rights of a high school student who was disciplined for 
creating, off-campus, an online parody profile of the school's 
principal that he created off campus and posted to MySpace. 268 
Justin Layshock used his grandmother's computer to copy and 
paste a picture of the principal from the school's website into the 
MySpace profile. 269 Justin then provided "bogus" answers to the 
website's questionnaire in which he mocked the principal's size. 270 
Justin then shared the profile with other students by adding them 
as friends; most other students at Justin's high school heard about 
the profile through word-of-mouth. 271 Three other students 

262 Layshock, 496 F. Supp. 2d at 599-600. 

263 Id. at 600. The court stated, among other things, that there was no nexus 
between Justin's expression and the alleged disruption because there were three other 
profiles available on MySpace at the same time. Id. The court also found that there was 
no evidence that the "buzz" on campus was caused by Justin's profile "as opposed to the 
reaction of the administrators." Id. 

264 Blue Mountain, 2008 WL 4279517, at *8. 

265 Id. at *4. 

266 Id. at *6. 

267 Id. 

268 Layshock v. Hermitage Sch. Dist., 593 F.3d 249, 252 (3d Cir. 2010). 

269 Id. 

270 Id. 

271 Id. at 253. 


subsequently posted even more vulgar postings than Justin's 
additions to the website. 272 

When the principal eventually learned of the profiles he 
found them "degrading," "demeaning," "demoralizing," and 
"shocking," and although he was not afraid for his safety, he 
thought about pressing charges for harassment, defamation, or 
slander. 273 He asked the school administration to disable the first 
profile, but students found ways to access the profiles, and Justin 
actually used a classroom computer to access the profile and show 
it to others. 274 Justin ultimately admitted to creating the profile, 
and went to apologize to the principal, but the school 
administrators suspended Justin and prohibited him, among other 
things, from attending his graduation ceremony. 275 

After the district court granted summary judgment in 
Justin's favor on his First Amendment claim, the school district 
appealed. 276 The issue presented before the Third Circuit was 
whether a "school district can punish a student for expressive 
conduct that originated outside of the classroom, when that 
conduct did not disturb the school environment and was not 
related to any school sponsored event." 277 Although the district 
court found that the school district could not "establish!] a 
sufficient nexus between Justin's speech and a substantial 
disruption of the school environment" 278 (that is, make the 
disruption reasonably foreseeable), the school district did not 
challenge that finding on appeal. 279 The school district instead 

272 Id. 

273 Id. Apparently, the principal never pressed charges. 

274 Id. 

275 Id. at 254. 

276 See Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587 (W.D. Pa. 2007). 

277 Layshock, 593 F.3d at 251. 

278 Layshock, 496 F. Supp. 2d at 600 (emphasis added). 

279 Layshock, 593 F.3d at 259. It is worth noting that the school district did not 
appeal this straight Tinker analysis disputing the factual finding about the nexus 
between the profile and any disruption, but instead asserted that there was a 
"sufficient nexus . . . between Justin's creation and distribution of the vulgar and 
defamatory profile of Principal Trosch and the School ..-.." Id. (emphasis added). The 
difference may have been critical. Only a few courts (notably the Pennsylvania 
Supreme Court in Bethlehem, and the Second Circuit in Wisniewski and Doninger) 
have required a substantial nexus between the expression and the foreseeability that it 
will reach school before applying Tinker to determine whether the expression caused or 


argued that "a sufficient nexus" existed between Justin's vulgar 
and defamatory profile of the principal and the school to permit 
the school district to regulate his conduct because the "speech" 
began on campus when he had "entered" school property — the 
website — and "misappropriated" the principal's picture 280 . In 
other words, the school district argued that the expression was not 
merely the equivalent of on-campus speech, but was speech 
created on campus. The school district also argued that it was 
reasonably foreseeable that the profile would come to the 
attention of the school district and the principal because it was 
aimed at the principal and the school community, and was 
accessed on campus by Justin. 281 

The Third Circuit rejected the argument that Justin had 
created a nexus between the profile and the school when he 
"entered" the school's website and "misappropriated" the 
principal's photo as too attenuated. 282 While recognizing that 
Tinker's "schoolhouse gate is not constructed solely of the bricks 
and mortar surrounding the school yard," the court stated that the 
reach of school authorities is not without limits. 283 Citing Morse, 
the court stated that although speech could be restricted on 
campus or at a school, had a student "delivered the same speech in 
a public forum outside the school context, it would have been 
protected." 284 The Third Circuit panel refused to "allow the School 
District to stretch its authority so far that it reaches Justin while 
he is sitting in his grandmother's home after school." 285 

The court also upheld the district court's holding that the 
school's punishment of Justin was inappropriate under Fraser 
because there was no evidence that Justin fell within its narrow 

could reasonably be foreseen to cause some substantial disruption. Neither is binding 
on the Third Circuit. Had the school district appealed the holding under Tinker, it 
might have been able to establish, if not an actual substantial disruption, at least a 
reasonably foreseeable one that required the school district to take action. 

280 Id. at 259. 

a" Id. 

282 Id. 

283 Id. at 260 

284 Id. (quoting Morse v. Frederick, 551 U.S. 393, 404 (2007)) (internal quotation 
marks omitted). 

285 Id. at 260. 


exception for lewd or offensive speech occurring at school. 286 Nor 
was the court swayed by the school district's reliance on 
Bethlehem, Wisniewski, or Doninger, where punishments were 
upheld for speech that originated off campus but made its way 
onto campus and created a substantial disruption. 287 The court 
distinguished Bethlehem on the "impact of the conduct," seemingly 
meaning a substantial disruption was present in Bethlehem but 
not in this case. 288 However, the Third Circuit later stated that 
because the school district failed to appeal the district court's 
finding that the profile did not disrupt the school, it would not 
"define the precise parameters of when the arm of authority can 
reach beyond the schoolhouse gate." 289 

Without commenting on Wisniewski, the court described and 
distinguished Doninger on the "consequences" of the expression — 
Doninger was prohibited from running for class president and 
Layshock was suspended. 290 However, the court was quick to 
point out that it did not "agree with that court's conclusion that 
the student's out of school expressive conduct was not protected by 
the First Amendment. . . ," 291 The court believed that the school 
districts' cases stood for "nothing more than the proposition that 
schools may punish expressive conduct that occurs outside of 
school as if it occurred inside the 'schoolhouse gate,' under certain 
very limited circumstances, none of which are present here." 292 
The court therefore held that Justin's use of the school's website 
did not constitute entering the school such that the school district 
was empowered to punish his "out of school expressive conduct." 293 

286 Id. at 260, 263. The Third Circuit never commented on whether it found the 
expression to be lewd or offensive. 

287 Id. at 261-83. 

288 Id. at 261 n. 17 

289 Id. at 263. The Third Circuit seemed to make the point that there was no 
substantial disruption, as required by Tinker, caused by the profile, while at the same 
time finding that it did not need to address the question because the issue was not 
raised on appeal. 

299 Id. at 262-63. 

291 Id. at 263. 

292 Id. 

293 Id. The Third Circuit's holding seemed to be that the case was outside the scope 
of Tinker because the speech occurred off campus, either because there was no nexus 
between the speech and the school as required by some cases as a threshold 


In J.S. ex rel. Snyder u. Blue Mountain School District, 
however, a different three-judge panel split in affirming the 
district court's determination that the creator of a similar parody 
profile created off campus but making its way onto campus could 
be punished by the school. 294 In this case, J.S. and a friend created 
a profile of the school's principal on their home computers by 
copying his picture from the school's website and posting it to 
MySpace. 295 The profile did not state the principal's name but 
contained profanity-laced statements insinuating that he was a 
sex-addict and pedophile. 296 The students intended the profile to 
appear as a self-portrayal by the principal, 297 and the profile was 
set as "public," which made it available to anyone who knew the 
URL or found it by searching MySpace. 298 J.S. ostensibly created 
the profile because she was mad at the principal for his treatment 
of her over a dress code violation, and she thought it would be 
"comical." 299 J.S. later changed the setting to "private," but then 
"granted 'friend' status" to twenty-two other students so they 
could view the profile. 300 

Because the school's computers blocked access to MySpace, 
students could only view the profile from off-campus locations. 301 
The principal subsequently learned about the profile when both a 
teacher and another student brought it to his attention. 302 

consideration before applying Tinker, or simply because it refused to grant on-campus 
status to any case originating off campus, applying a straight geographic-based test to 
the expression, although the district court below had recognized that "the test for 
school authority is not geographical." Layshock v. Hermitage Sch. Dist., 496 F. Supp. 
2d 587, 598 (W.D. Pa. 2007). The court's subsequent en banc opinion affirmed and 
determined that "[t]he School District's attempt to forge a nexus between the School 
and Justin's profile by relying upon his 'entering' the District's website to 'take' the 
District's photo of Trosch is unpersuasive at best." Layshock, 593 F.3d at 259. "The 
argument equates Justin's act of signing onto a web site with the kind of trespass he 
would have committed had he broken into the principal's office or a teacher's desk; and 
we reject it." Id. 

294 593 F.3d 286, 290 (3d Cir. 2010). 

295 Id. at 291. 

296 Id. at 290. 

297 Id. at 291. 

298 Id. at 292. 

299 Id. 

300 Id. 

301 Id. 

302 Id. 


However, only a single copy of the profile was found at school. 303 
The principal later found out that J.S. had created the profile, and 
although she initially denied it, she later admitted to creating it 
and was suspended. 304 

The profile's "effect" 305 at school was the creation of general 
"rumblings" both in and out of class, such that teachers had to 
quiet their classes. 306 Additionally, several counseling sessions 
were cancelled when the school's investigation required the 
school's personnel to assume additional duties. 307 Finally, fellow 
students decorated J.S.'s locker and congregated in the hallways 
to welcome J.S. back from her suspension. 308 

The district court granted the school summary judgment, 
acknowledging that although there was not a substantial 
disruption sufficient to satisfy Tinker, based on the facts of the 
case and "because the lewd and vulgar off-campus speech had an 
effect on-campus," the school had not violated J.S.'s rights by 
disciplining her; J.S. subsequently appealed. 309 

Although the district court applied Fraser to uphold the 
school's authority to punish J.S. because her profile was "vulgar, 
lewd, and potentially illegal speech that had an effect on 
campus," 310 the Third Circuit declined to decide whether Fraser 
applied to off-campus speech that has an effect on campus because 
it concluded that the profile, although created off campus, fell 
within the realm of Tinker. 311 It therefore did not employ the "two- 
step test" used by the district court to determine first, whether the 
speech came on campus due to its "effect" on the middle school, 
and then whether the school infringed on the student's rights by 

303 Id. 

304 Id. at 292-93. 
3 "5 Id. at 293. 
306 Id. at 294. 
3 " 7 Id. 

308 Id. 

309 Id. at 295 (quoting J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., No. 
3:07cv585, 2008 WL 4279517, at *7-8 (M.D. Pa. Sept. 11, 2008)). 

310 Blue Mountain, 2008 WL 4279517, at *6. 

311 Blue Mountain, 593 F.3d at 298. 


disciplining her. 312 Instead, the Third Circuit proceeded directly to 
a "Tinker inquiry." 313 

The court recognized that "[electronic communication allows 
students to cause a substantial disruption to a school's learning 
environment even without being physically present," 314 because of 
the potential for "rapid dissemination of information." 315 
Accordingly, the court held that "off-campus speech that causes or 
reasonably threatens to cause a substantial disruption of or 
material interference with a school need not satisfy any 
geographical technicality in order to be regulated pursuant to 
Tinker." 316 The court was persuaded by the profile's "particularly 
disturbing content," and the fact that the profile presented a 
"reasonable possibility of a future disruption, which was 
preempted only by principal McGonigle's expeditious investigation 
of the profile, which secured its quick removal, and his swift 
punishment of its creators." 317 The court also held that regardless 
of whether the profile satisfied the elements of criminal 
harassment or defamation, because of its "undoubtedly offensive, 
potentially very damaging, and possibly illegal language," the 
"potential impact of the profile's language alone is enough to 
satisfy the Tinker substantial disruption test." 318 

312 id. 

313 Id. In doing so, the Court recognized that it could, and was, affirming on 
alternate grounds. Id. at 298 n.5. 

314 Id. at 298 n.6. 

315 Id. at 301. 

316 Id. 

317 Id. at 300. 

318 Id. at 302. The court reasoned that although: 

[S]tudent speech that is critical of school officials is protected and not 
something we wish to censor generally, we distinguish such speech from the 
profile in the instant case that contained undoubtedly offensive, potentially 
very damaging, and possibly illegal language, including insinuations that 
strike at the heart of McGonigle's fitness to serve in the capacity of a middle 
school principal. We simply cannot agree that a principal may not regulate 
student speech rising to this level of vulgarity and containing such reckless 
and damaging information so as to undermine the principal's authority 
within the school, and potentially arouse suspicions among the school 
community about his character. 



However, one member of the panel dissented, finding that the 
profile did not cause a substantial disruption, actual or 
foreseeable, because its content was so outrageous that it could 
not have been taken seriously. 319 He was "particularly troubled" 
that the majority found the potential impact of the profile's 
language sufficient to satisfy Tinker, believing that such a finding 
was "an application of the Fraser standard rather than the Tinker 
standard" and reasoning that "to focus on the vulgarity of the 
language is to allow the Fraser exception to swallow the Tinker 
rule." 320 

Less than two weeks later, the District Court for the 
Southern District of Florida cited Layshock and Blue Mountain in 
its opinion that a student's off-campus expression of her dislike of 
her English teacher on Facebook was protected within the First 
Amendment. 321 In Evans u. Bayer, a student, working on her 
home computer, created a group on Facebook entitled "Ms. Sarah 
Phelps is the worst teacher I've ever met." 322 The page contained 
Ms. Phelps' picture, but contained no threats of violence. 323 Three 
postings appeared on the page from other students supporting Ms. 
Phelps. 324 Ms. Phelps never saw the page, it did not disrupt school 
activities, and the student removed it after two days. 325 However, 
after its removal, the principal became aware of it and suspended 
the student and removed her from advanced placement classes. 326 
The student brought suit alleging that the disciplinary action 
violated her First Amendment rights. 327 

The district court cited Blue Mountain, Doninger, and 
Wisniewski for the proposition that off-campus speech could be 
subject to analysis under Tinker if it "raises on-campus 
concerns." 328 Citing Bethlehem, the court stated that where the 

319 Id. at 316 (Chagares, J., dissenting). 

320 Id. at 317. 

32 i Evans v. Bayer, 684 F. Supp. 2d 1365 (S.D. Fla. 2010). 

322 Id. at 1367. 

323 Id. 









at 1368. The student also alleged that her punishment resulted in an 
"unjustified strain on her academic reputation and good standing." Id. 
32 « Id. at 1370. 


expression was created must be determined at the outset to decide 
whether the "unique concerns" of the school are implicated. 329 
However, citing Morse, the court reasoned that "the operative test 
is not a simple one of geography. Where the speech is published is 
not the only question that needs to be asked." 330 

The court considered Bethlehem and determined that 
"student speech concerns are implicated when speech published 
off-campus is brought on-campus" or accessed at school, 331 
especially when that "speech ... is aimed at a specific school 
and/or its personnel." 332 The court found this test not easily suited 
to "intangible situations like the [I]nternet," although realizing 
that some guise of it could control. 333 The court thus considered 
another "possibility," which would be "whether the speech is 
directed at a particular audience," which, while problematic in 
some instances, was "much more simple" and not "fundamentally 
unsound." 334 However, the court found that the simple fact that 
the speech was aimed at a particular audience at the school was 
not enough to render it on-campus speech when it was created off 
campus, was never accessed on campus, and was no longer 
accessible when the principal learned of it. 335 

The court next compared Evans' speech to Layshock's and 
found that because her posting did not occur at a school-sponsored 
event, and she had not even gone as far as Layshock and accessed 
it at school, the posting was off-campus speech over which the 
school's authority was "far less reaching." 336 The court determined 
that under Tinker — as reinforced by the Third Circuit in Blue 
Mountain — the test was whether the school had a "well-founded 

329 Id. 

330 Id. at 1371. 

331 Id. 

332 Id. (quoting J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 865 (Pa. 2002)) 
(internal quotation marks omitted). 

333 Id. 

334 Id. The court found this test problematic in that it "would prohibit students from 
publishing a newspaper off-campus aimed at other students and distributing that 
paper off-campus, a scenario which has been decided in favor of the studentsf,]" but 
ultimately decided that "any test is going to be over or under inclusive." Id. 

335 Id. at 1371-72. 

336 Id. at 1372-73. 


belief that a 'substantial' disruption [would] occur." 337 The court 
found no such well-founded expectation of disruption, 338 and thus 
determined that Evans' speech fell within the "wide umbrella of 
protected speech." 339 

To date, these eleven cases are the only cases addressing 
internet expression created off campus but ultimately arriving on 
campus. Perhaps because of that, courts have been diligent in 
reviewing and applying the past precedent, and some clear 
patterns appear, as well as some trends. From 1998 to 2002, four 
cases came to various federal district courts, and each court found 
that the students' First Amendment rights had been violated. 340 
In none of the cases did the creator intend the expression to make 
its way to campus, or bring the expression to campus himself. 341 
Two of these cases, Beussink and Killion, involved crude, vulgar 
language, 342 and two, Emmett and Mahaffey, involved expression 
touching upon death or killing generally, but not threatening a 
specific person. 343 Yet, in Beussink, Emmett, and Killion, the 
courts seemed to focus more on the creator's intent than on the 
expression's content, expressly refusing to consider "[d]isliking or 

337 Id. at 1373. (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 
514 (1969)). The court relied on the district court's opinion in Layshock for the 
proposition that "[a] mere desire to avoid discomfort or unpleasantness will not 
suffice . . . ." Id. (quoting Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587, 597 
(W.D. Pa. 2007)). The court also relied on the Third Circuit's decision in Blue Mountain 
for the determination that a "showing of past incidents arising out of similar speech 
may pass muster." Id. (citing J.S. ex rel. Snyder v. Blue Mountain Sch. Dist.. 593 F.3d 
286 (3d Cir. 2010)). 

338 Id. 

339 Id. at 1374. In an unusual aside, the court stated that although it agreed that "a 
school should not condone the use of vulgar or lewd language, quite simply, the case at 
hand does not involve the same type of speech as Fraser, nor is it in the same context. 
Evans' Facebook group does not undermine the 'fundamental values' of a school 
education." Id. It is unclear whether the court was implying that truly lewd and 
offensive speech originating off campus could come within Fraser. 

34 ° See Mahaffey v. Aldrich, 236 F. Supp. 2d 779, 782 (E.D. Mich. 2002); Killion v. 
Franklin Reg'l Sch. Dist., 136 F. Supp. 2d 446, 448 (W.D. Pa. 2001); Emmett v. Kent 
Sch. Dist., 92 F. Supp. 2d 1088, 1089 (W.D. Wash. 2000); Beussink v. Woodland ft-P/ 
Sch. Dist., 30 F. Supp. 2d 1175, 1177 (E.D. Mo. 1998). 

341 See Mahaffey, 236 F. Supp. 2d at 786; Killion, 136 F. Supp. 2d at 448; Emmett, 
92 F. Supp. 2d at 1089; Beussink, 30 F. Supp. 2d at 1177. 

342 Killion, 136 F. Supp. 2d at 448; Beussink, 30 F. Supp. 2d at 1177. 

343 Mahaffey, 236 F. Supp. 2d at 782 (asks readers to kill); Emmett, 92 F. Supp. 2d 
at 1089 (obituaries). 


being upset by the content" 344 of the expression or 
"undifferentiated fears of possible disturbances" 345 sufficient 
reason for limiting a student's speech under Tinker. And, despite 
lewd or offensive content, these courts refused to apply Fraser. In 
Mahaffey, the court simply found that the content of the website 
was not a "true threat," and found no substantial disruption under 
Tinker.** 6 

However, beginning with Bethlehem and continuing in the 
next three cases beyond it, the courts found the student 
expression was not protected. 347 The expressions in Bethlehem, 
Wisniewski, and O.Z. involved expression advocating the killing of 
a specific person, 348 and in Bethlehem and O.Z. those persons were 
truly frightened and suffered mental and physical distress, 349 
while the teacher in Wisniewski was "distressed" enough to report 
it to the school who called the police. 350 In Wisniewski and O.Z., 
the courts found that the speech was not protected despite the 
creator's lack of intent to have the expression come onto campus 
(although O.Z. had shared it with a third person). 351 In Doninger, 
the expression was created for the express purpose of reaching 
campus and causing a disruption and "pissing off 
administrators. 352 

In these cases, the content of the expression, especially when 
coupled with intent to have the expression make its way to 
campus, was sufficient for the courts to find the expression 

344 Killion, 136 F. Supp. 2d at 455; Beussink, 30 F. Supp. 2d at 1180. 

345 Emmett, 92 F. Supp. 2d at 1090 (quoting Burch v. Barker, 861 F.2d 1149 (9th 
Cir. 1988)). 

346 Mahaffey, 236 F. Supp. 2d at 784-86. 

347 The 2007 Layshock district court decision breaks the chain and was upheld by 
the Third Circuit in 2010. See Layshock v. Hermitage Sch. Dist., 593 F.3d 249 (3d Cir. 
2010). But since that opinion has been vacated with no further word from the court to 
date, this discussion will not include the Layshock district court opinion in the 
discussion of the pattern emerging with Bethlehem. 

348 Wisniewski v. Bd. of Educ, 494 F.3d 34, 36 (2d Cir. 2007); O.Z. v. Bd. of 
Trustees, No. 08-5671, 2008 WL 4396895, at *1 (CD. Cal. Sept. 9, 2008); J.S. v. 
Bethlehem Area Sch. Dist., 807 A.2d 847, 851 (Pa. 2002). 

349 O.Z. v. Bd. of Trustees, No. 08-5671, 2008 WL 4396895, at *1 (CD. Cal. Sept. 9, 
2008); Bethlehem, 807 A.2d at 847. 

350 Wisniewski, 494 F.3d at 36. 

351 Id. at 38-40; O.Z., 2008 WL 4396895, at *4. 

352 Doninger v. Niehoff, 527 F.3d 41, 45 (2d Cir. 2008). 


unprotected. The expression would foreseeably 353 end up on 
campus because of the fear or interest it would cause in the school 
community, 354 and once there, it would cause or portend a 
substantial disruption, creating what has been called a "passive 
telepresence." 355 

It may be that sufficient time had passed since the first case 
in 1998 for courts to see the impact that telepresence could have 
on campus, regardless of the intent of the creator to bring the 
speech onto campus. Additionally, from the time of Wisniewski, 
these courts looked also to Morse, which has been described as the 
first of the Supreme Court's student speech opinions to venture 
into "content-based regulation" of student speech. 356 In any case, a 
distinct pattern occurs in these cases as the courts began to find 
that the content of the expression was directly correlated to the 
foreseeability of the expression making its way onto campus and 
portending disruption. 

However, in 2010, the Third Circuit's decisions in Layshock 
and Blue Mountain seemed to strike out in other directions, 
perhaps fueling its decision to vacate both opinions and re- 
evaluate. In fact, these cases almost seem to be decided 
backwards, using a strict Tinker analysis. In Layshock, where 
both the district court and the Third Circuit panel found that the 
student's expression was protected under Tinker, there was a 
direct attack on a specific person within the school, which was 

353 The ease of obtaining internet expression is clearly what distinguishes it from 
other off-campus speech. Although possible, it is not reasonably foreseeable, for 
example, that a student writing untoward comments about another member of the 
school community in her diary is going to have that expression make its way onto 
campus without her intent or consent. The diary expression requires the speaker's 
active participation to bring the speech on campus. The internet speaker's intent is 
irrelevant. It is not for nothing that federal authorities and child safety advocates 
advise parents to warn their children not to post anything online that they would not 
want others to see or read. See Brad Bechler, "Online 'Sextortion' of Teens Rising — 
Sexual Extortion— What is it and How to Prevent it?, GATHER NEWS (Aug. 16, 2010), 
http://news. action?articleId=281474978448754. 

354 Most students create websites because of the relationships formed in school. "If 
the parties had not attended the same school, the speech would not likely exist." 
Servance, supra note 7, at 1237. 

355 Pike, supra note 32, at 1002. 

356 Nairn, supra note 130, at 247. 


crude and offensive. 357 The victim of that speech, as the victims in 
Bethlehem, Wisniewski, and O.Z., was "shocked" by the 
expression, and while not afraid for his safety — just as 
VanderMolen was not in Wisniewski — felt the expression was 
"degrading" to the point he thought about filing suit against 
Layshock for defamation or slander, 358 just as the school in 
Wisniewski had gone to the police. 

In addition to the crude and offensive content, which the 
district court admitted was similar to Bethlehem, although less 
extreme, 359 Layshock actually accessed the website on campus, 
from a school computer, showing his intent to bring the expression 
on campus. 360 This is similar to the student in Bethlehem who told 
others about the site and showed it at school, the student in 
Doninger who intended the readers to contact and "piss off the 
school's administration, and the student in O.Z. who showed the 
site to another student. 361 With content that was nearly as 
onerous as that in Bethlehem, Wisniewski, and O.Z., coupled with 
an intent to bring the expression on campus by actually accessing 
it there, as did the student in Bethlehem, the court could 
seemingly have found that the content of the speech made it 
foreseeable that it would reach the school — regardless of whether 
Justin accessed it there himself — because it was about a specific 
member of the school community and, if not actually causing a 
disruption of the proportions present in Bethlehem, making it 
reasonably foreseeable that such a disruption would occur. 

The district court admitted that although there were clear 
parallels between Bethlehem and Layshock, it choose to reach a 
"slightly different balance between student expression and school 
authority," 362 without further explanation, in what the court 

357 Layshock v. Hermitage Sch. Dist., 593 F.3d 249, 252, 260 (3d Car. 2010). 

358 Id. at 253. 

359 Id. at 261 n.17 (citing Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587, 
602 (W.D. Pa. 2007)). 

360 Id. at 591. 

361 See Doninger v. Niehoff, 527 F.3d 41, 45 (2d Cir. 2008); O.Z. v. Bd. of Trustees, 
No. 08-5671, 2008 WL 4396895, at *4 (CD. Cal. Sept. 9, 2008); J.S. v. Bethlehem Area 
Sch. Dist., 807 A.2d 847, 851-52 (Pa. 2002). 

362 Layshock, 496 F. Supp. 2d at 602. 


admitted was a "difficult case." 363 On appeal, however, the Third 
Circuit refused to apply Tinker to Justin's expression because it 
had been created off campus and no subsequent event turned it 
into on-campus expression. It then went further than the district 
court, determining that Bethlehem was not even "on point," 
because of the difference in "impact" (the actual disruption) the 
speech had on campus. 364 The court also distinguished Doninger 
on the less serious consequences to the student, and in addition, 
disagreed with the Second Circuit's overall decision. 365 

In Blue Mountain, however, a student created a similar 
parody profile that, while not naming the principal, included his 
picture, obtained from the school's website, and stated that he was 
a sex addict and a pedophile. 366 J.S. created the profile because 
she was "mad" at the principal, and therefore set the profile as 
"public," which made it possible for anyone on the Internet to see 
the expression, and also "friended" twenty-two students. 367 

The court directly applied Tinker, without engaging in 
Bethlehem's two-step analysis that first requires a court to find 
that the off-campus speech will foreseeably come onto campus. 368 
The court recognized that because of its "rapid dissemination of 
information," 369 internet expression makes it possible to cause a 
substantial disruption of the school environment without the 
student being "physically present." 370 That possibility becomes 
reasonably foreseeable, according to the Blue Mountain court, 
when the content is sufficiently disturbing, in which case "the 
potential impact of the profile's language alone is enough to 
satisfy the Tinker substantial disruption test." 371 Therefore, the 
court found Tinker satisfied despite the profile having been 

363 Id. at 595. 

364 Layshock, 593 F.3d at 261 n. 17. 

365 Id. at 263. 

3 <56 J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 593 F.3d 286, 290 (3d Cir. 2010). 

3 <" Id. at 292. 

368 J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 864 (Pa. 2002). 

369 Blue Mountain, 593 F.3d at 301. 

370 Id. at 298 n.6. 

371 Id. at 302. 


created off campus and despite the mere "rumblings" that actually 
occurred on campus. 372 

Layshock and Fraser then reached very different conclusions 
on similar facts. Yet, the disruption was certainly greater in 
Layshock, as was the principal's reaction to the parody profile. The 
difference in the cases was due entirely to how the different three- 
judge panels viewed the nature of the off-campus speech that 
came onto campus. The Third Circuit en banc decision will have to 
determine which route that court will take. 373 

372 Id. at 294. 

373 As this Article is being prepared for publication, the Third Circuit has handed 
down decisions in both cases that find the student's First Amendment rights violated 
because the speech was created off campus, requiring a "substantial disruption," or 
threat of one, in order to bring them within the Supreme Court's Tinker exception. The 
Court found no such disruption in either case. Therefore, the Third Circuit upheld the 
panel decision in Layshock but reversed on that issue in Blue Mountain. In Layshock, 
the decision relied on the fact that the school district had not argued that the profile 
created a substantial disruption. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, at 
*11 (3d Cir. 2011) (en banc). In Blue Mountain, the court reasoned that there was no 
substantial disruption and no reasonable fear that a substantial disruption was likely 
to occur: 

J.S. created the profile as a joke, and she took steps to make it 'private' so 
that access was limited to her and her friends. Although the profile contained 
McGonigle's picture from the school's website, the profile did not identify him 
by name, school, or location. Moreover, the profile, though indisputably 
vulgar, was so juvenile and nonsensical that no reasonable person could take 
its content seriously, and the record clearly demonstrates that no one did. 

J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 929 (3d Cir. 2011). These 
cases demonstrate that Tinker is still the central battleground in off-campus student 
speech cases; the Tinker standard of reasonably foreseeable substantial disruption is 
the first step of any analysis. Until the Supreme Court hears a case of off-campus 
speech, there will continue to be the confusion that cases like Blue Mountain and 
Layshock create, and splits on the issue, as between the Second and Third Circuit 
Courts. However, a few days after Layshock and Blue Mountain, the Supreme Court 
ruled in favor of children's First Amendment right to buy, rent, and watch violent video 
games — holding a California law restricting the sale or rental of violent video games to 
minors unconstitutional. See Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729 (2011). 
The Court reiterated: 

[A]s a general matter, . . . government has no power to restrict expression 
because of its message, its ideas, its subject matter, or its content. . . . There 
are of course exceptions. . . . These limited areas — such as obscenity, . . . 
incitement, . . . and fighting words, . . . represent well-defined and narrowly 
limited classes of speech, the prevention and punishment of which have never 
been thought to raise any Constitutional problem. 


The final case, Evans v. Bayer, considered the Third Circuit's 
decisions in Layshock and Blue Mountain, and came down on the 
side of Layshock, although with facts that were much more 
susceptible to holding the student expression protected. 374 Evans' 
"worst teacher" page was not threatening, her teacher never saw 
the page, and Evans removed the page before the school ever 
became aware of it. 375 The court recognized Bethlehem and its 
progeny as standing for the undisputed proposition that student 
expression might not be protected when it is created off campus 
but brought onto campus or actually accessed at school, especially 
when aimed at the school or one within the school community. 376 
However, the court limited Bethlehem's rationale to instances in 
which the expression was actually accessed on campus, and did 
not find that the mere content of the expression — the fact that the 
expression was targeted at a member of the school 
community — was sufficient to make such expression on-campus 
speech. 377 The court also refused to find that the school could have 
a "well-founded belief that a 'substantial' disruption [could] occur" 
merely because the expression targeted a member of the school 
community. 378 

In the dozen years of specifically internet-related student 
speech cases, it has become clear that "[t]he place of origination 
has little relation to the disruption [of] the school environment." 379 
However, synthesis of these eleven cases shows that the decisions 

Id. at 2733 (internal citations and quotation marks omitted). However, the Court also 
reiterated that "new categories of unprotected speech may not be added to the list by a 
legislature that concludes certain speech is too harmful to be tolerated." Id. at 2734. 
The Court therefore seems unlikely to resolve any dispute over the Third Circuit's 
recent decisions in favor of the school districts, despite Justice Thomas' dissenting view 
that the First Amendment does not reach to minors at all. He argues that "[t]he 
practices and beliefs of the founding generation establish that 'the freedom of speech,' 
as originally understood, does not include a right to speak to minors (or a right of 
minors to access speech) without going through the minors' parents or guardians." Id. 
at 2751 (Thomas, J., dissenting). 

374 Evans v. Bayer, 684 F. Supp. 2d 1365 (S.D. Fla. 2010). 

375 Id. at 1367. 

376 Id. at 1371. 

377 Id. 

378 Id. at 1373. 

379 Servance, supra note 7, at 1215. 


are "highly fact-specific," 380 and the strongest scenarios for 
legitimate school restriction of cyber-expression are, in descending 
order, those in which: (1) the expression conveys a threat against 
a specific person, coupled with an intent that the expression be 
seen on campus and causes that person physical and/or emotional 
distress (Bethlehem); 381 (2) the expression conveys a threat 
against a specific person that is not specifically intended to be 
accessed on campus and causes that person physical and/or 
emotional distress (O.Z.); 382 (3) the expression conveys a threat 
against a specific person that is not specifically intended to be 
accessed on campus and causes no real distress to that person 
(Wisniewski); 383 (4) lewd, vulgar, or offensive expression directed 
at a particular person, which is intended to be accessed on campus 
but causes the targeted person no reported distress (Blue 
Mountain); 384 and (5) vulgar, offensive expression that is intended 
to make its way onto campus and cause disruption, and actually 
does so (Doninger). 385 Within this context, Lay shock stands out as 
a case for reconsideration, since the expression was vulgar and 
offensive, directed at a particular member of the school 
community, and intended to be accessed on campus. 386 

On the other hand, cases in which the creator of the 
expression had no intent for the expression to reach campus, 
coupled with another mitigating factor, will not suffice: (1) no 
intent and no one saw the expression on campus (Beussink); 387 (2) 
no intent, and although seen, no one was distressed by it 
(Emmett); 388 (3) no intent, and although reaching campus, the 
expression was not immediately discovered or discussed 
(Killion); 389 and (4) no intent, no threat, and no specific target 
(Mahaffey) 3 ™ 


See, e.g., Vander Broek et al., supra note 19, at 20. 
See supra notes 210-37 and accompanying text. 
See supra notes 251-57 and accompanying text. 
See supra notes 233-42 and accompanying text. 
See supra notes 294-320 and accompanying text. 

385 See supra notes 243-50 and accompanying text. 

386 Layshock v. Hermitage Sch. Dist, 496 F. Supp. 2d 587, 591 (W.D. Pa. 2007). 

387 See supra notes 171-81 and accompanying text. 
8 See supra notes 182-90 and accompanying text. 

See supra notes 191-200 and accompanying text. 
See supra notes 201-09 and accompanying text. 



This above synthesis also indicates the relevance of targeting 
a specific individual whose privacy right to be "let alone" has been 
impacted in regulating such speech (Bethlehem, O.Z.). 391 In fact, 
as the district court in Blue Mountain realized, "the protections 
provided under Tinker do not apply to speech that invades the 
rights of others .... [T] he speech at issue affected McGonigle's 
rights. As a principal of a school, it could be very damaging to 
have a profile on the [IJnternet indicating that he engages in 
inappropriate sexual behaviors." 392 

Finally, although lewd, vulgar, and offensive speech 
(Doninger), especially when targeted at a specific individual 
within the school community (Bethlehem, Blue Mountain), 
presented a valid reason for regulating the speech, only the 
Pennsylvania Supreme Court in Bethlehem and the district court 
in Blue Mountain have been willing to extend Fraser to speech 
created off campus but foreseeably making its way onto campus, 
"even though it arguably did not cause a substantial disruption of 
the school." 393 

III. J.C. exrel. R.C. v. Beverly Hills Unified School 
District. Student-on-Student Internet Attacks 

It is against the above synthesis of cases that J.C. ex rel. R.C. 
v. Beverly Hills Unified School District 394 makes its entry into the 
internet expression arena. In fact, Judge Stephen Wilson 
specifically amended his November 16, 2009 opinion in the case to 
take into consideration the Third Circuit's opinions in Layshock 
and Blue Mountain. 395 The problem, as Judge Wilson points out, 

391 Layshock would certainly seem to fit here. Additionally, as both the district court 
and the Third Circuit noted in Blue Mountain, the principal's property right to practice 
his profession was also impacted by the expression calling him a sex addict and a 
pedophile. J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 593 F.3d 286, 302 (3d Cir. 
2010); J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., No. 3:07cv585, 2008 WL 
4279517, at *6 n.4 (M.D. Pa. Sept. 11, 2008). 

392 Blue Mountain, 2008 WL 4279517, at *6 n.4. 

393 Id. at *6. 

394 J.C. ex rel. R.C. v. Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094 (CD. 
Cal. 2010). 

395 Although the amended opinion is dated May 6, 2010, Judge Wilson clearly wrote 
the opinion before the Third Circuit, sitting en banc, vacated both opinions on April 9, 
2010. Id. at 1097 n.l. 


is that there have been no prior cases that address expression by 
one student targeted at another student; 396 the eleven internet 
expression cases all concerned student expression targeted at the 
school or one of its administrators or teachers. 

Beverly Hills, however, is a true "cyber-bullying" case in 
which a student, through her parents, sued her school, after it 
suspended her for posting a video maligning another student on 
YouTube. 397 In that case, the plaintiff, J.C., and her thirteen-year- 
old friends, gathered at a nearby restaurant and recorded a four 
and one-half minute video on her personal recording device, after 
having been dismissed from school for the day. 398 On the video, 
J.C. and her friends talked about their classmate, C.C., and one of 
J.C.'s friends called C.C. a "slut," "spoiled," and "the ugliest piece 
of shit I've ever seen in my whole life," while also talking about 
"boners," and using profanity throughout. 399 

Later that evening, J.C. posted the video on YouTube from 
her home computer and contacted five to ten students from the 
high school, including C.C, and told them to look at the video. 400 
The video received ninety "hits" that evening. 401 The next 
morning, J.C. overheard at least ten students discussing the 
video, 402 and ultimately, nearly half the eighth grade class saw 
the video. 403 Students could not access YouTube on the school 
computers, and cell phones that had Internet capability were 
prohibited from being used on campus; consequently, there was no 
evidence that any student viewed the video from a cell phone 
while at school. 404 

C.C. came to school with her mother that morning to make 
the school aware of the video. 405 C.C. spoke with the school 
counselor and was crying when she told the counselor that she did 

396 Id. at 1111. The court does not mention Coy v. Board of Education, 205 F. Supp. 
2d 791 (N.D. Ohio 2002). See supra note 6. 

397 Id. at 1098-99. 

398 Id. at 1098. 

399 Id. 

400 Id. 

401 Id. 

402 Id. 

403 Id. at 1120. 

404 Id. at 1099. 

405 Id. at 1098. 


not want to go to class because she felt humiliated. 406 After twenty 
to twenty-five minutes of counseling, C.C. was convinced to return 
to class, and ultimately only missed part of her first class. 407 

School administrators viewed the video while on campus and 
then demanded that J.C. delete it. 408 They also questioned the 
other students involved in making the video, one of whose father 
came to campus, watched the video, and then took his daughter 
home for the rest of the school day. 409 

Ultimately, the school only took disciplinary action against 
J.C, who had a prior history of secretly videotaping her teachers, 
for which she had been suspended and told not to make further 
videos on campus. 410 During the investigation of the current 
incident, school administrators discovered another video that J.C. 
had posted on YouTube of two friends talking on campus, clearly 
made while at school. 411 After the investigation, J.C. was 
suspended from school for two days. 412 J.C, through her parents, 
sued the school for violation of her constitutional rights, and the 
parties filed cross motions for summary adjudication. 413 

Judge Stephen Wilson determined that to resolve the issue, 
the court had to "determine the scope of a school's authority to 
regulate speech by its students that occurs off campus but has an 
effect on campus." 414 To do so, he considered the quartet of 
Supreme Court precedents on student speech and determined that 
neither Hazelwood nor Morse applied 415 because the expression 
neither "bore the 'imprimatur' of the school," 416 nor could 
reasonably be construed as promoting drug use. 417 Nor did he 
apply Fraser, because it has been limited to speech that originates 

406 Id. 

4 ° 7 Id. 

408 Id. at 1098-99. 

409 Id. at 1099. 
"» Id. 


Id. at 1097. 
Id. at 1100. 
Id. at 1109. 

« Id. (citing Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988)). 
Id. (citing Morse v. Frederick, 551 U.S. 393 (2007)). 


on campus, reasoning that a school has the power to determine 
what speech is appropriate in its classrooms and assemblies. 418 

Thus, the court found that Tinker applied to determine 
"whether a school can regulate student speech or expression that 
occurs outside the school gates, and is not connected to a school- 
sponsored event, but that subsequently makes its way onto 
campus, either by the speaker or by other means." 419 The court 
then considered the Ninth Circuit's decision in LaVine u. Blaine 
School District, 420 which determined that a violent and graphic 
poem about killing classmates — written off campus but later 
brought to campus and shown to a teacher — was not protected, 
applying Tinker's substantial disruption test, and 
"concluding] that the school was reasonable to portend a 
substantial disruption." 421 

The court also considered the Second Circuit's approach, 
which considers the location of the speech as an important 
threshold question to be resolved before applying Tinker, 
requiring a "nexus" between the expression and the school before 
applying the substantial disruption test. 422 The court ultimately 
synthesized all these cases and concluded: 

[T]he majority of courts will apply Tinker where speech 
originating off campus is brought to school or to the attention 
of school authorities, whether by the author himself or some 
other means. The end result established by these cases is that 
any speech, regardless of its geographic origin, which causes 
or is foreseeably likely to cause, a substantial disruption of 
school activities can be regulated by the school. Second, some 
courts will apply the Supreme Court's student speech 

418 Id. at 1110 (citing Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986)). 

419 Id. at 1102-03. 

420 LaVine v. Blaine Sch. Dist., 257 F.3d 981 (9th Cir. 2001). 

421 Beverly Hills, 711 F. Supp. 2d at 1103 (citing LaVine, 257 F.3d at 992). The court 
recognized that "many other courts analyzing off-campus speech that subsequently is 
brought to campus or to the attention of school authorities apply the substantial 
disruption test from Tinker without regard to the location where the speech originated 
(off campus or on campus)," and "have directly applied the Tinker substantial 
disruption test to determine if a First Amendment violation occurred, without first 
considering the geographic origin of the speech." Id. at 1103-04. 

422 Id. at 1104-05 (citing Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008); Wisniewski 
v. Bd. of Educ, 494 F.3d 34 (2d Cir. 2007)). 


precedents, including Tinker, only where there is a sufficient 
nexus between the off-campus speech and the school. It is 
unclear, however, when such a nexus exists. The Second 
Circuit has held that a sufficient nexus exists where it is 
"reasonably foreseeable" that the speech would reach campus. 
The mere fact that the speech was brought on campus may or 
may not be sufficient. 423 

Applying these principles, the Court found that the plaintiffs 
"geography-based argument . . . that the School could not regulate 
the YouTube video because it originated off campus," failed under 
both LaVine and the Second Circuit's approaches, because "the 
YouTube video clearly ha[d] a sufficient connection to the Beverly 
Vista campus," and actually made its way onto campus. 424 The 
court reasoned that content may increase the likelihood that the 
expression will reach campus, finding that "[cjases considering the 
relationship between off-campus speech and the school campus 
more readily find a sufficient nexus exists where speech over the 
Internet is involved." 425 

After finding that Tinker applied to both off-campus speech 
and on-campus speech, the court considered whether the video 
"created, or was reasonably likely to have created, a substantial 
disruption of school activities," and found that it did not. 426 The 
court determined that while the disruption did not need to rise to 
the level of "complete chaos," 427 it must be more than a "mild 
distraction," 428 or creating a "mere 'buzz'" 429 on campus. However, 
the court acknowledged that violent or threatening expression 
could reasonably portend disruption. 430 But ultimately the court 
found that what was required was that the school's decision to 
discipline be based on evidence or facts, rather than 

423 Id. at 1107. 

*" Id. at 1107-08. 

425 Id. at 1108 (citing Wisniewski, 494 F.3d 34; Doninger, 527 F.3d 41). 

426 Id. at 1110, 1122. 

4 " Id at 1111 (quoting J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 868 (Pa. 

428 Id. 

429 Id. at 1112. 
«» Id. 


"undifferentiated fears or mere disapproval." 431 Only "where 'a 
school can point to a well-founded expectation of disruption— 
especially one based on past incidents arising out of similar 
speech— the restriction may pass constitutional muster."' 432 

Under these parameters, the court found any disruption de 
minimus when a few students missed some portion of classes on a 
single day, where the speech was neither violent nor threatening, 
no one's safety was ever in danger, and the student was merely 
embarrassed and was able to be counseled back to class. 433 Under 
such circumstances, the court found that the video could not be 
said to have had any effect on class activities. 434 

The court also considered the second prong of Tinker, which 
allows that a school may regulate student speech that "[collides] 
with the rights of other students to be secure and be let alone." 435 
Although the court reasoned that '"speech that impinge [s] upon 
the rights of other students' may be prohibited even if a 
substantial disruption to school activities is not reasonably 
foreseeable," the court found "the precise scope of Tinker's 
'interference with the rights of others'" language unclear, and not 
often applied by lower courts. 436 

The defendant school district urged the court to follow a 
Ninth Circuit case, Harper v. Poway Unified School District, 
which held "that a student's decision to wear a T-shirt with a 
religious message condemning homosexuality during the school's 
'Day of Silence' impinged upon the rights of other students under 
Tinker." 431 The court in Harper "held that student speech that 

431 Id. at 1115. 

432 Id. at 1116 (quoting Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 212 (3d 
Cir. 2001)). 

433 Id. 

434 Id. at 1119. 

435 Id. at 1122 (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 
508 (1969)). This test has been determined to be independent of the other. See supra 
note 120. 

436 Beverly Hills, 711 F. Supp. 2d at 1122. 

437 Id. (citing Harper v. Poway Unified Sch. Dist., 445 F.3d 1166 (9th Cir. 2006)). 
The Harper decision was vacated as moot because when "the case reached the Supreme 
Court on certiorari, the district court had entered final judgment dismissing plaintiffs 
claims for injunctive relief as moot." Beverly Hills, 711 F. Supp. 2d at 1122 n.16 (citing 
Harper v. Poway Unified School District, 549 U.S. 1262 (2007)). 


attacks 'particularly vulnerable' students on the grounds of 'a core 
characteristic' — namely, race, religion, and sexual orientation — 
impinged on the rights of others and could be regulated under 
Tinker," 438 but expressly limited its holding to speech attacking 
students on those three grounds, declining to extend its holding 
even to remarks based on gender. 439 

Although the defendants argued that Harper demonstrated 
that "California schools have an obligation to protect students 
from psychological assaults that cause them to question their self 
worth," 440 the court refused to allow schools to "exercise this 
obligation in a manner that infringes upon other student's First 
Amendment rights." 441 The court found no "authority, including 
Harper, that extends the Tinker rights of others prong so far as to 
hold that a school may regulate any speech that may cause some 
emotional harm to a student." 442 The court declined to be the 
first. 443 

The question, then, is where does Beverly Hills stand within 
the parameters established by the previous cyber-expression 
cases? The first and most obvious distinction is that the cyber- 
expression in this case was directed at a fellow student, rather 
than at the school or one of its employees. 444 There are simply no 
cases directly on point. 445 The court notes the distinction, 446 but 

438 Id. at 1123 (quoting Harper, 445 F.3d at 1182). 

439 Id. 

440 Id. (citing Defendant's Motion at 11, Harper v. Poway Unified School District, 
549 U.S. 1262 (2007) (No. 06-595)). 

441 Id. 

442 Id. 

443 Id. 

444 Id. at 1098. 

445 See Willard, supra note 4, at 6. Nancy Willard has explained: 

One reason for the lack of case law is likely that there are very few 
attorneys[,] such [as] J.C.'s father, Evan Cohen, who filed the case, who are 
inclined to file a law suit against a school district arguing that students 
should have a First Amendment right to torment and harass other students. 

Id. The Los Angeles Times reported Evan Cohen as explaining, "[T]he case highlighted 
the school district's failure to realize the limits of its authority. Yeah, sure, they can 
fall back on cyber-bullying, but when you actually ask them questions and dig down 
deep into their understanding, they think it's OK for them to be a super-parent." See 
Kim, supra note 4 (quoting Evan Cohen, the child's attorney and father) (internal 
quotation marks omitted). 


makes nothing of it. But this difference from the other cyber- 
expression cases touches on the nature of the disruption that had 
or foreseeably would occur. 

If Tinker's substantial disruption test is the only test to be 
used in cyber-expression cases, it is important for courts to take 
note of the difference of that disruption in student-on- student 
attacks. When off-campus internet expression involves student 
online speech targeted at school administrators or teachers, the 
question of whether the speech has or foreseeably will cause a 
substantial disruption of general school activities in the larger 
sense is relevant. 447 However, when such speech is directly 
targeting a fellow student, there stands to be little or no such 
broad disruption. In Beverly Hills, there was no reported general 
disruption of classroom or school activities; the disruption of the 
school activity was to C.C., the targeted student. 448 The 
expression caused her to want to skip class, which she in fact did, 
until counseled back to class with the promise that the school was 
taking steps to put a stop to the attacks. 449 

Yet, as then-Judge Alito pointed out in Saxe v. State College 
Area School District, "The primary function of a public school is to 
educate its students; conduct that substantially interferes with 
the mission (including speech that substantially interferes with a 
student's educational performance) is, almost by definition, 
disruptive to the school environment." 450 As Nancy Willard, 
Director of the Center for Safe and Responsible Internet Use 
observed, "The inquiry should have focused on one question: Was 

446 Beverly Hills, 711 F. Supp. 2d at 1111. 

447 Willard, supra note 4, at 6. 

448 Beverly Hills, 711 F. Supp. 2d at 1122. 

449 Willard, supra note 4, at 5. Willard observed: 

[C.C.'s] willingness to go to class was predicated on the fact that she knew 
that the school officials were intending to call the aggressors to the office and 
deal with the situation. The fact that the school officials at Beverly Vista 
School responded promptly and effectively to this situation was held against 
the district. Due to the district's effective disciplinary actions, the foreseeable 
significant interference with C.C.'s ability to participate in school activities 
was prevented! 

Id. It should be noted that the creators of the expression also had their classroom day 
interrupted, as did administrators and counselors. 

450 Saxe v. State College Area Sch. Dist., 240 F.3d 200, 217 (3d Cir. 2001). 


the speech of J.C. sufficiently severe or pervasive that it had or 
foreseeably would substantially interfere with C.C.'s educational 
performance and right to feel secure at school, and thus her right 
to receive an education?" 451 

Secondly, the expression certainly collided with the privacy 
rights of C.C. to be let alone and to receive and exercise her 
education, in which the Supreme Court has found a "property 
interest." 452 In Harper, the Ninth Circuit applied Tinker's second 
test to find that wearing a T-shirt to school that condemned 
homosexuality impinged on the rights of other students, even 
though no substantial disruption occurred. 453 Although the court 
limited its holding to expression attacking "particularly 
vulnerable students" on a "core characteristic" such as race, 
religion, or sexual orientation," even dissenting Judge Kosinski 
recognized that Tinker's "rights of others" test referred to 
"traditional rights, such as . . . invasion of privacy." 454 

Additionally, although the expression did not threaten C.C, 
it was lewd, vulgar, and offensive speech specifically about her, 
intended for her and other students to see, and actually brought to 
their attention. 455 It achieved its intention; it caused her 
humiliation, but not where it was originally created and not where 
it was initially read, but only at school where the expression had 
rather foreseeably made its way onto campus, where other 
students, eventually as much as half her class, 456 were discussing 
it. As such, the facts exceed those in Blue Mountain, where the 
lewd and vulgar speech caused the principal no reported 
distress — although certainly impacting other rights, 457 and brings 
it close to the expression causing the teacher distress in 
Wisniewski. 458, Although no other case has treated cyber- 
expression by one student targeted at another, the Third Circuit 

451 Willard, supra note 4, at 5. 

«2 Goss v. Lopez, 419 U.S. 565, 576 (1975). 

453 Harper v. Poway Unified Sch. Dist., 445 F.3d 1166 (9th Cir. 2006). 

454 Id. at 1198 (Kozinski, J., dissenting). 

«s J.C. ex rel. R.C. v. Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094, 1098 

(CD. Cal. 2010). 

456 Id. at 1120. 

4 " J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 593 F.3d 286, 302 (3d Cir. 2010). 

«» Wisniewski v. Bd. of Educ, 494 F.3d 34, 36 (2d Cir. 2007). 


recognized in a case about the constitutionality of a school's racial 
harassment policy that "[i]ntimidation of one student by another, 
including intimidation by name calling, is the kind of behavior 
school authorities are expected to control or prevent. There is no 
constitutional right to be a bully." 459 

Finally, the expression would certainly have come within 
Fraser if J.C. and her friends had stood up in class, in the 
assembly hall, in the cafeteria, or on the athletic field 460 and made 
the same statements. In Fraser, the Court protected the rights of 
school children to be let alone, to be protected by the school from 
expression that was generally offensive and embarrassing, but in 
no way targeted any child herself. 461 Certainly, then, there is an 
argument to be made that a school child must also be protected 
from lewd, vulgar, and offensive expression that, although 
originating off campus, foreseeably makes its way onto campus 
and is specifically targeted at a child, causing her to feel 
"humiliated," regardless of the substantiality of any resultant 
overall school disruption. The Supreme Court's edict seems to 
apply equally in Fraser: 

The First Amendment does not prevent the school officials 
from determining that to permit [] vulgar and lewd speech . . . 
would undermine the school's basic educational mission. . . . 
[When] directed towards an unsuspecting audience of teenage 
students. . . . [V]ulgar speech and lewd conduct is wholly 
inconsistent with the "fundamental values" of public school 
education. 462 

One is therefore forced to ask whether a student too cowardly 
to say such things to another student's face for risk of punishment 
(and J.C. had been suspended before for secretly videotaping her 
teachers and had posted another video on YouTube about her 

459 Sypniewski v. Warren Hills Reg'l Bd. of Educ, 307 F.3d 243, 264 (3d Cir. 2002). 

460 The Supreme Court recognized that children's rights at school extended beyond 
the classroom and classroom hours, and included time spent "in the cafeteria, or on the 
playing field, or on the campus during authorized hours . . . ." Tinker v. Des Moines 
Indep. Cmty. Sch. Dist, 393 U.S. 503, 512-13 (1969). 

461 Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 679 (1986). 

462 Id. at 685-86. 


classmates that had clearly been made at school) 463 should be 
allowed to say them on the Internet, call them to the attention of 
the target and other students — virtually ensuring that the 
expression would come to campus the next day — and then be 
allowed to hide behind her computer and say that her expression 
is protected because it was not initiated on campus? Perhaps the 
Third Circuit's edict applies equally to cyber-expression: "Students 
cannot hide behind the First Amendment to protect their 'right' to 
abuse and intimidate other students at school." 464 

Conclusion: Applying the "Substantial Nexus" Inquiry 

Beyond Tinker 

Unlike the political expression in Tinker that did not 
"intrude G upon the work of the schools or the rights of other [s]," 465 
J.C.'s expression may not have substantially disrupted the work of 
the school (except for that of the administrators and counselor), 
but it certainly disrupted C.C.'s work of getting an education and 
intruded upon C.C.'s right to be let alone and her privacy interest 
in her reputation. 466 The question is, whether and how to allow 
schools to regulate and punish such expression. 

Certainly Tinker teaches that children's rights do not stop at 
the schoolhouse gate, but it also teaches that children's rights 
sometimes require modification in light of the "special 
characteristics of the school environment." 467 The Supreme Court 
has so far enumerated four instances where children's First 
Amendment rights may be modified — yet all of them require that 
the speech originate within the schoolhouse gates: Student 
expression may be regulated and punished when it occurs on 
campus and causes a substantial disruption, 468 when it occurs on 
campus and is lewd, vulgar, and offensive, 469 when it occurs on 

463 Beverly Hills, 711 F. Supp. 2d at 1099. 

464 Sypniewski, 307 F.3d at 264. 
«* Tinker, 393 508. 

466 Prosser, supra note 1, at 398. 

467 Tinker, 393 U.S. at 506. 

468 Id. at 514. 

"69 Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986). 


campus and bears the imprimatur of the school, 470 or when it 
occurs on campus and promotes drug use. 471 The Court in Morse 
later recognized that Tinker's substantial disruption test was not 
"absolute," 472 although rejecting the contention that Fraser 
encompassed "any speech that could fit under some definition of 
'offensive.'" 473 

But the Court has also indicated that rights may need to be 
balanced, and the right to free speech on campus may not 
"colli[de] with the rights of otherjs]," 474 although none of its cases 
give any real guidance about when this happens or how it 
happens. What is needed now is a fair and consistent way for 
schools to balance those rights in internet expression cases where 
speech is created off campus, and would otherwise be protected, 
but intentionally or foreseeably makes its way onto campus. 

To that end, there have been various proposals for extending 
school authority over online speech created off campus. The 
broadest proposals simply call for universally applicable analysis 
of the expression under Tinker, regardless of inception of the 
speech, 475 or to treat all internet expression as on-campus speech 
if a student "knowingly [or] recklessly distributes the speech on- 
campus," regardless of the target. 476 

Others have found that Tinkers "collision with the rights of 
other [s]" test is particularly pertinent in litigation involving 
student internet expression and apply it as the most reasonable 
solution. 477 However, one commentator finds the "better 
interpretation of Tinker's . . . [second] prong ... [is to] allow 

470 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988). 

471 Morse v. Frederick, 551. U.S. 393, 397 (2007). 

472 Id. at 405. 

473 Id. at 409. 

474 Tinker. 393 U.S. at 508 

475 g ee pik e> supra note 32, at 997. This is essentially the method that lower courts 
have been using with inconsistent results. See Tinker, 393 U.S. at 506. 

476 Justin Markey, Enough Tinkering with Students' Rights: The Need for an 
Enhanced First Amendment Standard to Protect Off-Campus Student Internet Speech, 
36 CAP. U. L. REV. 129, 132 (2007). 

477 McCarthy, supra note 22, at 1; Kellman, supra note 120, at 370. The only court 
to do so was the Ninth Circuit in Harper v. Poway Unified Sch. Dist., 445 F.3d 1166 
(9th Cir. 2006), later vacated by the Supreme Court "as moot" because the district court 
had entered final judgment. Harper v. Poway Unified Sch. Dist., 549 U.S. 1262 (2007). 


schools to regulate student speech only when it has the potential 
to spark a physical assault." 478 The problem with this limitation, 
of course, is that it lends itself to a "true threat" analysis, which is 
more difficult to prove, 479 and leaves schools the tough job of 
determining just what speech has the potential to spark a physical 

Others have realized that because each internet expression 
case demands a fact-specific inquiry, what is needed is a "multi- 
factor analysis." 480 Several formulas have been proposed. Renee 
Servance suggests an "impact analysis," finding that schools may 
regulate if the target and creator of the internet expression are 
members of same school, the expression causes actual or 
foreseeable harm, and there is a disruption to the school's ability 
to educate or maintain classroom control. 481 Another, narrower, 
proposal is to treat student expression created off campus as 
protected, subject to review of whether it was viewed at school, 
whether and to what extent students discussed it on campus, and 
whether the school's measures against the perpetrator were 
appropriate. 482 

Nancy Willard, Director of the Center for Safe and 
Responsible Internet Use, proposes considering whether the 
expression was "sufficiently severe or pervasive that it had or 
foreseeably would substantially interfere with [a student's] 
educational performance and right to feel secure at school, and 
thus her right to receive an education." 483 She proposes: 

[T]his determination should be made based both on the 
subjective perspective of [the student], as well as an objective 
third party perspective — informed by research insight on 
bullying. ... [in order to] effectively distinguish between 
student speech that is merely "offensive" but should be 
considered protected speech and speech that is truly harmful 

478 Kellman, supra note 120, at 370. 

479 See supra note 47 and accompanying text. 

480 King, supra note 11, at 876. 

481 Servance, supra note 7, at 1239. 

482 King, supra note 11, at 876. 

483 Willard, supra note 4, at 5. 


and interfering with the right of another student to feel 
secure at school and receive an education. 484 

Whatever method might be employed, another obvious 
proposal is that schools should have to provide adequate notice 
that certain speech is prohibited in order not to raise due process 
concerns, and the actual punishment meted out must be 
reasonable. 485 

Beverly Hills, however, is a case calling into relief the need 
for courts to be liberated from applying Tinkers substantial 
disruption requirement as the only test in student-on-student 
cyber-bullying cases, because, as has been shown in Part III, 486 it 
is not well-suited to addressing student cyber-expression targeting 
another student. To that end, a modest proposal: off-campus 
internet expression comprising a student-on-student attack that 
intentionally or foreseeably 487 makes its way onto campus, must 
be treated as on-campus speech. 488 To do so would merely extend 

484 Id. 

485 Waldman, supra note 40, at 1114. The author of this proposal notes that this 
would raise the problem of self-censorship. Justice Stevens observed in his dissent in 
Fraser that it was "highly unlikely that [the student] would have decided to deliver the 
speech if he had known" the consequences. Bethel Sch. Dist. No. 403 v. Fraser, 478 
U.S. 675, 696 (1986) (Stevens, J., dissenting). 

486 See supra notes 445-49 and accompanying text. 

487 Benjamin Ellison has commented that treating cyber expression as on-campus 
speech when it is only reasonably foreseeable that it will come to campus is not enough 
to restrict student expression because the Internet is so readily available in school and 
elsewhere, that it is reasonably foreseeable that once speech is on the Internet, it will 
end up anywhere there is a computer and a user interested in accessing it — including 
at school. "Allowing schools to punish speech that merely reaches school, through a 
medium that essentially exists everywhere, would result in a strong chilling effect on 
student speech outside of school." Benjamin Ellison, More Connection, Less Protection? 
Off-Campus Speech with On-Campus Impact, 85 NOTRE DAME L. REV. 809, 844-45 
(2010). While this is undoubtedly true, it is also the point in student-on-student attacks 
perpetuated via the Internet. Limiting restriction of expression reasonably foreseeable 
to come onto campus to student-on-student attacks will allow school officials, in loco 
parentis, to protect children's educational and privacy rights, rights that are not 
implicated in student-on school-employee cases. Teachers and administrators do not 
have a right to education at their school and adults would be presumed to be 
"adequately equipped emotionally and intellectually to deal with the type of verbal 
assaults that may be prohibited during their earlier years." Harper v. Poway Unified 
Sch. Dist., 445 F.3d 1166, 1183 (9th Cir. 2006). 

488 This proposal is based on the "nexus" approach originated in Bethlehem and 
taken up by the Second Circuit. Those courts found that establishing a "sufficient 


the general premise, adopted by the lower courts over the last 
twelve years in applying Tinker's substantial disruption test, that 
"off-campus speech that causes or reasonably threatens to cause a 
substantial disruption of or material interference with a school 
need not satisfy any geographical technicality in order to be 
regulated." 489 This would, for example, allow schools to restrict 
and punish such expression that is clearly shown to "colli [de] with 
the rights of other students to be secure and to be let alone," 490 or 
is lewd, vulgar, and offensive 491 to the child targeted, such that it 
impacts her ability to receive and participate in her education. 

Although doing so will further limit students' freedom of 
expression, it is important to recognize that lewd, vulgar, 
offensive, or threatening expression by one student directed at a 
fellow student, is not an expression of "opinion ... on controversial 
subjects," which Tinker so carefully sought to protect, 492 or 
"divergent political and religious views" that Fraser found must be 
tolerated even if unpopular. 493 Although name-calling aimed at 
other students is ordinarily protected outside the school context, 
lewd, vulgar, or offensive internet expression that intentionally or 
foreseeably makes its way onto campus, even when created off 
campus, targets students for public harassment within the 
enclosed environment of the schoolhouse gates. In the words of the 
Fraser Court, such speech must be "balanced against the society's 
countervailing interest in teaching students the boundaries of 
socially appropriate behavior." 494 "The schools, as instruments of 
the state, may determine that the essential lessons of civil, mature 
conduct cannot be conveyed in a school that tolerates lewd, 
indecent or offensive speech. . . ." 495 The only stretch of Fraser's 
restriction of such "manner" of speech is that of geographic 

nexus" between the expression that was created off campus and the school was enough 
to make it "on-campus" expression and bring it within Tinker to then consider whether 
the expression caused a substantial disruption of school activities. See discussion supra 
Part II. 

«» J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 593 F.3d 286, 301 (3d Cir. 2010). 

490 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508 (3d Cir. 2010). 

491 Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986). 

492 Tinker, 393 U.S. at 513. 

493 Fraser, 478 U.S. at 681. 

494 Id. 

495 Id. at 683. 


origination, which the court in Beverly Hills and other internet 
expression cases now recognizes is "not material," at least to an 
application of Tinker. 496 

Secondly, as Renee Servance has observed, the theory that 
any harm such expression causes is outweighed by the greater 
danger of suppressing free speech may be appropriate for adults, 
but not for school children. 497 Studies show that a child's sense of 
and need for privacy develops as everyday experiences teach them 
about privacy as they are exposed to different interactions with 
themselves and their information. 498 "Very young children have 
difficulty in the conscious recognition of private space and private 
information. However, parallel to their psychological and social 
development, they learn the boundaries of personal space and the 
privacy of information." 499 "Childhood privacy practices are 
therefore inextricably intertwined in the child's developing 
cultural sense of autonomy in her upbringing." 500 "By adolescence, 
children are acutely aware of the significance of privacy, both 
territorial and informational." 501 Eventually, privacy becomes 
"volitional," and the need for adult supervision ceases, but until 
that time, a child's privacy protection is "subject to the 'whim' of 
her caretaker." 502 

And because school children are subject to mandatory 
attendance requirements, the Supreme Court has emphasized 
"the obvious concern on the part of parents, and school authorities 
acting in loco parentis, to protect children — especially in a captive 

496 J.C. ex rel. R.C. v. Beverly Hills Unified Sch. Dist, 711 F. Supp. 2d 1094, 1108 
(CD. Cal. 2010); accord Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587, 598 
(W.D. Pa. 2007) ("It is clear that the test for school authority is not geographical."). 

497 Servance, supra note 7, at 1214. 

498 Stuart, supra note 36, at 618. 

499 Id. at 620. 

500 Id. at 618. 

501 Id. 

502 Id. The Ninth Circuit, in Harper v. Poway Unified School District, similarly 
realized that limitations on student speech must be narrow, and limited its holding to 
conduct occurring in public elementary and high schools, because "[a]s young students 
acquire more strength and maturity, and specifically as they reach college age, they 
become adequately equipped emotionally and intellectually to deal with the type of 
verbal assaults that may be prohibited during their earlier years." 445 F.3d 1166, 1183 
(9th Cir. 2006). 


audience . . . ." 503 Schools have authority over some other off- 
campus conduct in certain circumstances where the conduct 
affects the school community, 504 and schools are in the best 
position to decide whether off-campus expression that 
intentionally or foreseeably is brought onto campus should be 
restricted in order to prevent substantial disruption or a collision 
with the rights of other students. 

The negative effects of an invasion of a child's privacy right to 
be let alone by cyber -bullying has by now been well-documented, 
and as Alison King points out, the "negative effects of 
cyberbullying are often more serious and long-lasting than those 
of traditional forms of bullying." 505 As the Ninth Circuit 
recognized, such "psychological attacks . . . cause young people to 
question their self-worth and rightful place in society." 506 The 
Internet provides a "veil of anonymity," encouraging expression 
that might not otherwise have been made, as well as providing 
immediate access to it by endless others at the click of a mouse, 
and allowing the expression to remain indefinitely. 507 As such, it 
is "pervasive and prolonged abusive behavior," that can result in 
severe psychological damage, such as low self-esteem, anxiety, and 
depression leading to social withdrawal, as well as truancy, and 
ultimately can impair academic achievement. 508 There is also 
documentation that bullied children tend to strike back with 
violence either towards the bully, or others, or even themselves by 
suicide. 509 

Children such as thirteen-year-old C.C. have a right to be 
protected from these abuses that violate what the Supreme Court 
has called a "liberty interest in [their] reputation" 510 and a right to 
be let alone and receive and exercise their education. When 
student-against-student expression created off campus is shown to 
have a "nexus" to the school by being intentionally carried there 

503 Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 684 (1986). 

504 See supra notes 36-38 and accompanying text. 

505 King, supra note 11, at 850. 

506 Kellman, supra note 120, at 371 (quoting Harper, 445 F.3d at 1178). 

507 King, supra note 11, at 850. 

508 Servance, supra note 7, at 1216-17. 

509 Id. at 1217. 

510 Goss v. Lopez, 419 U.S. 565, 576 (1975). 


by its creator, or foreseeably making its way onto campus because 
its target is a fellow student and it contains prurient content 
intended to attract viewers in the school community, it should be 
treated as on-campus speech, allowing children's rights to be 
properly balanced under any of the Supreme Court's student 
speech exceptions. Such a classification would have allowed the 
court in Beverly Hills to consider the case under Fraser because 
the expression would have been considered on-campus speech, or 
used Tinker's "collision with the rights of other[s]" test to restrict 
on-campus speech that collided with C.C.'s privacy rights. 



Debra D. Burke* & Angela J. Grube** 

Introduction 265 

I. The NCAA National Letter of Intent Program 266 

II. Contractual Capacity: The Minor's Common 

Law Right to Disaffirm 270 

A. Overview 270 

B. Limitations 272 

III. Enforceability of Letters of Intent 275 

A. Education as a Necessary? 277 

B. Parental Approval? 278 

C. Employment Contracts? 282 

D. Statutory Exceptions for Minors in the 

Sport and Entertainment Industry 285 

IV. Implications Going Forward 288 

A. Policy Considerations 288 

B. Recommendations 292 

Conclusion 296 


The National Letter of Intent (NLOI) program provides 
member schools a systematic way of recruiting student athletes. 1 
But are these letters of intent binding on prospective players who 

* Professor, Western Carolina University, J.D., M.PA., University of Texas. 
** Associate Professor, Western Carolina University, Ph.D., Florida State 

1 For an overview of the NLOI program, see Stacey Meyer, Comment, Unequal 
Bargaining Power: Making the National Letter of Intent More Equitable, 15 MARQ. 
SPORTS L. REV. 227, 227-31 (2004); Michael J. Riella, Note, Leveling the Playing Field: 
Applying the Doctrines of Unconscionability and Condition Precedent to Effectuate 
Student-Athlete Intent Under the National Letter of Intent, 43 WM. & MARY L. REV. 
2181, 2185-88 (2002). 



sign the agreement when they are minors? In 2008, a female 
basketball player signed a letter of intent to play for a Division I 
regional university. 2 Subsequently, the head coach for women's 
basketball at the university announced that she would be leaving 
to coach at a larger Division I school. 3 With the departure of the 
coach, the prospective player no longer wished to play for the 
university with which she had signed, and sought a release from 
her commitment; however, the university refused to release her. 
So she filed suit, claiming that her letter was invalid because she 
was not yet eighteen years old when she signed it, and thus under 
state law, the agreement was not binding. 4 A basic principle of 
contract law provides that minors can disaffirm agreements 
entered into during their minority. 5 Although the university 
ultimately released her from her letter of intent, the case 
highlights a potential problem with the NLOI program. While it is 
designed in part to inject rationality and order into a potentially 
chaotic recruiting process, the common law's infancy doctrine 
protects minors from improvident agreements made with 
potentially predatory adults. 6 This paper analyzes the right of a 
minor to disaffirm contracts in conjunction with the NLOI 

I. The NCAA National Letter of Intent Program 

The National Collegiate Athletic Association (NCAA) is a 
well-funded, non-profit organization with over 1200 members that 
administers athletic issues in institutions of higher education. 7 

2 Tim Stevens, Letters of Intent Might Not Stand Up, NEWS & OBSERVER (Sept. 22, 
2009 7:40 AM), 
not-stand.html; see also Luke DeCock, Letter of Intent in College Athletics Is Faulty, 
NEWS & OBSERVER (Aug. 8, 2010 4:49 AM), 
619278/letter-of-intent-faulty.html (discussing the case and the issue of minors and 
letters of intent). 

3 DeCock, supra note 2. 

4 Stevens, supra note 2. 

5 John D. Calamari & Joseph M. Perillo, The Law of Contracts §§ 8.1-.9 (4th 

ed. 1998). Minors may also have a reasonable time to disaffirm a contract after 
reaching majority age. Sisneros v. Garcia, 613 P.2d 422, 423 (N.M. 1980). 

6 For a discussion of minority as a defense to an otherwise binding contractual 
arrangement, see infra notes 32-58 and accompanying text. 

7 Glenn M. Wong, Essentials of Sport Law 17 (4th ed. 2010). In 2009-2010, 

the NCAA's total revenue stream exceeded $700,000,000, and its television revenue 


Although the organization is voluntary, member schools are bound 
by the organization's regulations and must administer their 
athletic programs in accordance with NCAA rules. 8 The NCAA 
was founded in 1906 as a result of a conference called by President 
Theodore Roosevelt with representatives from thirteen colleges 
and universities in order to address the brutality of the sport of 
football and to reform the rules of college football. 9 The NCAA was 
primarily a discussion group and rules-making body, until 1921 
when the association expanded its operations and conducted its 
first championship tournament. 10 With the growth and divergence 
in the number of college athletics programs, the NCAA, in 1973, 
divided its member institutions into three legislative and 
competitive divisions — I, II, and III. 11 As the NCAA organization 
evolved, so did its commercial endeavors, its presence in the media 
outlets, and commensurately its revenue stream. 12 

The NLOI program was established to bring order to what 
otherwise could be a free-for-all in the recruitment process. 13 A 
group of seven conferences in 1964 created the NLOI program to 
alleviate recruiting excesses that became common with "increased 
television exposure in the 1940s and 1950s." 14 To stop schools 

alone amounted to $638,980,000. Id. at 21. See also Orion Riggs, The Facade of 
Amateurism: The Inequities of Major-College Athletics, 5 KAN. J.L. & PUB. POL'Y 137, 
138-40 (1996) (discussing the big business of college athletics). 

8 WONG, supra note 7, at 165. For a history of the regulatory and enforcement 
structure of the NCAA, see Kevin E. Broyles, NCAA Regulation of Intercollegiate 
Athletics: Time for a New Game Plan, 46 ALA. L. REV. 487, 490-93 (1995). 

9 The Intercollegiate Athletic Association of the United States was formed later in 
1906 and "took its present name, the NCAA, in 1910." History, NCAA, 
http://www. About+the+NCAA/Who+We+ Are/A 
bout+the+NCAA+history (last visited Nov. 1, 2011). 

10 Id. Eventually, more rules committees were formed and more championship 
series were created. Id. 

11 Id. "Five years later, Division I members voted to create subdivisions I-A and I- 
AA (renamed the Football Bowl Subdivision and the Football Championship 
Subdivision in 2007) in football." Id. 

12 Jeffrey J.R. Sundram, Comment, The Downside of Success: How Increased 
Commercialism Could Cost the NCAA Its Biggest Antitrust Defense, 85 TUL. L. REV. 
543, 546-50 (2010). 

13 For an overview of the NCAA's regulation of recruiting, see 2 ROBERT C. BERRY 

& Glenn M. Wong, Law and Business of the Sport Industries § 1.41-.43 (1986). 

14 Michelle Brutlag Hosick, History of the National Letter of Intent, NCAA (Feb. 2, 
2011 5:00 PM), 


from luring away football players after they had enrolled on other 
campuses, the group formed a plan to issue letters of intent "that 
would keep other conference coaches from recruiting a student- 
athlete once he declared his intent to participate at a specific 
school." 15 For a time, the documents were recognized only within a 
conference, but subsequently a voluntary inter-conference letter of 
intent program was developed by the Collegiate Commissioners 
Association (CCA), which subsequently initiated a National Letter 
of Intent to ensure that a student-athlete would attend an 
institution for one academic year in return for financial aid. 16 
Today, the NCAA Eligibility Center, which handles most issues 
surrounding prospective student-athletes, administers the NLOI 
program. 17 Though the program was originally created to address 
issues with the recruitment of football student-athletes, all 
student-athletes recruited for any NCAA-sponsored sport now 
participate. 18 

The National Letter of Intent is a document issued by the 
CAA and subscribing NCAA-member institutions to prospective 
student-athletes in order to establish the commitment to attend a 
particular institution. 19 In actuality, the various conferences play 
a greater role in administering the program than the NCAA, 
although it might behoove the NCAA to exercise more oversight. 20 
Currently, there are 620 participating Division I and Division II 
institutions and over 37,000 prospective student-athletes who sign 
a NLOI each year. 21 Once signed, if student-athletes wish to 
change schools, then they must participate in at least one practice 
in their sport or attend at least one class at their initially selected 

15 id. 

16 id. 

17 The NCAA administers the NLOI program; however, only the CCA has the 
power to make changes to the program, which is still governed by the CCA through a 
group of four, five-member committees: NLOI Policy and Review Committee, Division I 
Appeals Committee, Division II Review Committee and Division II Appeals Committee. 

18 Id. 

19 Gil Fried & Michael Hiller, ADR in Youth and Intercollegiate Athletics, 1997 
BYUL. Rev. 631,643-44. 

20 Meyer, supra note 1, at 243-44. 

21 Quick Reference Guide to the NLI, NCAA 1-2, 
connect/85bbf0004e0dc6ec94fef4 1 ad6fc8b25/NLI+Guide+20 1 1 1 .pdf?MOD=AJPERES 
&CACHEID=85bbf0004e0dc6ec94fef41ad6fc8b25 (last visited Nov. 1, 2011). 


institution, sit out a year in their sport prior to enrolling at 
another institution, and complete a full-time academic program 
for a full year at the new institution before competing in their 
sport again. 22 Enrolling in another institution within one year of 
the execution of the agreement "results in intercollegiate 
ineligibility for two years, unless the initial institution formally 
releases the student." 23 In other words, "the basic penalty for not 
attending" the institution with which the student signed the NLOI 
agreement "for one academic year (two semesters or three 
quarters) is the loss of one season of competition in all sports and 
a required one academic year in residence at the next NLOI 
member institution before being able to represent another NLOI 
institution in intercollegiate athletics competition." 24 

If an institution chooses not to release a prospective student- 
athlete from the NLOI, the prospective student-athlete may 
appeal the institution's decision by submitting a NLOI Appeals 
Form to the NLOI office within thirty days after the institution 
denied the release request. 25 The institution will then have an 
opportunity to respond in writing to the student's appeal. 26 
Following receipt of the institutional response, the NLOI 
committee (NLOI Policy and Review Committee for Division I 
institutions or the Division II Review Committee) will review the 
materials and render a decision. 27 This decision may be appealed 
to the NLOI Appeals Committee within thirty days of the date of 
the appeal decision letter, whose decision is final and binding on 
member institutions. 28 If the NLOI Appeals Committee upholds 

22 Fried & Hiller, supra note 19, at 644. 

23 Leroy Pernell, Drug Testing of Student Athletes: Some Contract and Tort 
Implications, 67 DENV. U. L. Rev. 279, 284 (1990) (discussing the NLOI as a 
contractual obligation). The Release Request form is available online. National Letter 
of Intent Release Request Form, NCAA 1-2, 
?MOD=AJPERES&CACHEID=6d4f0c80486cc85b9444b74c8af46e6f (last visited Nov. 1, 
2011) [hereinafter Release Request Form]. 

24 Release Request Form, supra note 23, at 1 (emphasis added). 

25 National Letter of Intent Penalty Provisions & Appeals Process, NCAA 1, 
http://www.ncaa. org/wps/wcm/connect/2f47b5004e0dc6de94eff41ad6fc8b25/Appeals+Pr 
ff41ad6fc8b25 (last visited Nov. 1, 2011). 

26 Id. 

27 Id. 

28 Id. 


the decision in favor of an institution, the student-athlete may 
transfer to another institution, but will not be eligible to 
participate in intercollegiate athletics for one year. 29 Any 
institution that signs a player who was not properly released has 
violated the recruiting ban established under the NLOI program 
and would be subject to sanctions. 30 

The NLOI program also established specific signing periods 
for prospective student athletes, in both the fall and spring of a 
high school athlete's senior year. 31 Predictably, many student- 
athletes will not yet have reached their eighteenth birthday when 
they sign NLOI agreements on these prescribed dates. So assume 
the athlete changes his or her mind subsequent to signing the 
NLOI agreement. Assume also that the institution refuses to 
release the athlete, and the student-athlete loses his or her appeal 
of the institution's decision to the NLOI Committee. Could the 
student athlete, who is a minor, not simply disaffirm the contract? 

II. Contractual Capacity: The Minor's Common Law Right 


A. Overview 

Contractual capacity is one of the requirements for a valid, 
enforceable contract. 32 A lack of contractual capacity makes the 
agreement voidable at the option of the person lacking capacity. 33 

29 Id. Last year, fewer than 700 prospective student-athletes, who signed a NLOI, 
requested releases. Of these, thirty did not obtain a release. Hosick, supra note 14. 

30 The NLOI acknowledges that all participating conferences and institutions are 
obligated to respect the agreement and cease recruiting of the signed athlete. National 
Letter of Intent, NCAA 1-3 (Oct. 1, 2008), 

31 Signing Dates, NCAA, wcm/connect/nli/nli (last visited 
Nov. 1, 2011). 

32 Restatement (Second) of Contracts § 12 (1981). For a summary of capacity 

as a contractual requirement and the common law rules applied to minors see 42 AM. 
JUR. 2D Infants §§ 39-136 (2010). 

33 Along with minors, persons who are mentally incompetent or intoxicated also 
lack contractual capacity. RESTATEMENT (SECOND) OF CONTRACTS §§ 15-16 (1981); see 
Hedgepeth v. Home Sav. & Loan Ass'n, 361 S.E.2d 888, 889-90 (N.C. Ct. App. 1987) 
(discussing the requirements for disaffirmance by mentally incompetent parties); see 
also First State Bank of Sinai v. Hyland, 399 N.W.2d 894, 896 (S.D. 1987) (discussing 
the circumstances under which a party can avoid a contract based on intoxication). 
Historically, married women also lacked capacity to take, hold, or convey property, a 


The common law protects minors from the making of improvident 
contracts during their infancy by permitting them to rescind, or 
disaffirm, such contracts. 34 What is referred to as the Infancy 
Doctrine can be traced to the thirteenth century, while its basic 
concepts "have been in place since at least the fifteenth century." 35 
This contractual defense permits minors to disaffirm otherwise 
binding agreements during their minority and for a reasonable 
time after they reach the age of majority, which is eighteen years 
old in most states. 36 Disaffirmance must be of the entire contract 
and not just an objectionable part. 37 

The obligation of the minor upon disaffirmance is to return 
the consideration the minor received in the transaction in order to 
receive the consideration the minor exchanged, such that the 
status quo ante is restored. 38 Typically, there are few 
complications if the power of avoidance is exercised at the 
executory stage, because there has been no exchange of 
consideration, only potentially non-recoupable reliance 
expenditures incurred by the competent party. However, if the 
consideration is damaged, destroyed, or consumed in some way, 
state law may impose a make-whole obligation, requiring payment 

restriction which was removed by state legislatures through the enactment of Married 
Women's Property Acts. Peddy v. Montgomery, 345 So. 2d 631, 633-34 (Ala. 1977). 

34 Mellott v. Sullivan Ford Sales, 236 A. 2d 68, 70 (Me. 1967). Similar protection is 
afforded to minors by the civil law in Louisiana. Melvin John Dugas, The Contractual 
Capacity of Minors: A Survey of the Prior Law and the New Articles, 62 TUL. L. REV. 
745 (1988) (discussing the Civilian Code and Louisiana law). For a discussion of the 
infancy doctrine and comparison of the law of the United States and England, see 
Simon Goodfellow, Note, Who Gets the Better Deal?: A Comparison of the U.S. and 
English Infancy Doctrines, 29 HASTINGS INT'L & COMP. L. REV. 135 (2005). 

35 Larry Cunningham, A Question of Capacity: Towards a Comprehensive and 
Consistent Vision of Children and Their Status Under Law, 10 U.C. DAVIS J. JUV. L. & 
POL'Y 275, 290 (2006). 

36 Restatement (Second) of Contracts § 14 (1981). 

37 CALAMARI & PERILLO, supra note 5, at § 8.4; see also Langstraat v. Midwest Mut. 
Ins. Co., 217 N.W.2d 570, 571 (Iowa 1974) (refusing to permit selective disaffirmance of 
provisions in a contract for insurance). 

38 Quality Motors, Inc. v. Hays, 225 S.W.2d 326, 328 (Ark. 1949) (stating the rule 
that a minor may disaffirm contracts by returning the consideration received as is 
available); see also Robertson v. King, 280 S.W.2d 402, 404 (Ark. 1955) (holding that 
the minor was entitled to recover the reasonable market value of the car at the time of 
purchase, since the consideration given by the minor was no longer available). 


of depreciation or damages by the minor upon disaffirmance, 39 
although many states require no more than that the minor return 
the consideration, if available, without consequence. 40 

If minors misrepresent their age, the requirements upon 
disaffirmance will also depend upon state law, 41 although the 
common law rule provided that falsely representing that one had 
capacity did not confer capacity. 42 Nevertheless, there is generally 
a greater obligation under state law to make restitution in cases of 
misrepresentation, and some states do not allow avoidance. 43 

B. Limitations 

There are other common law and statutory restrictions on 
minors' ability to disaffirm contracts. 44 For example, the law in 
most states holds minors liable for the reasonable value of the 
consideration provided if the contract is for something that is 
necessary to maintain their station in life, in order to encourage 

39 See Dodson v. Shrader, No. 89-128-11, 1989 Tenn. App. LEXIS 683, at *21 (Tenn. 
Ct. App. Oct. 20, 1989) (stating the rule that permits reasonable compensation for the 
use of the item, or for depreciation, or for willful or negligent damage by the minor). 

40 See, e.g., Swalberg v. Hannegan, 883 P.2d 931, 932-33 (Utah Ct. App. 1994) 
(holding that state law does not require the minor to restore a plaintiff to his pre- 
contractual status); Halbman v. Lemke, 298 N.W.2d 562, 567 (Wis. 1980) (holding that 
a disaffirming minor need not make restitution). 

41 See, e.g., Keser v. Chagnon, 410 P.2d 637, 639-41 (Colo. 1966) (concluding that 
while misrepresenting one's age does not destroy the right to disaffirm, damages 
incurred as a result of the false representation may be deducted); Doenges-Long 
Motors, Inc. v. Gillen, 328 P.2d 1077, 1081-82 (Colo. 1958) (allowing recovery for the 
damages that flowed from the misrepresentation); Haydocy Pontiac, Inc. v. Lee, 250 
N.E.2d 898, 900 (Ohio Ct. App. 1969) (concluding that an infant who induces the 
contract through false representation may not disaffirm the contract without returning 
the consideration to the other party). 

42 Sims v. Everhardt, 102 U.S. 300, 313 (1880) ("[A] fraudulent representation of 
capacity cannot be an equivalent for actual capacity."). 

43 For example, a state statute may prohibit disaffirmance. KAN. STAT. ANN. § 38- 
103 (2009) (prohibiting disaffirmance when, because of the minor's own 
misrepresentations as to his majority or involvement in business as an adult, the other 
party had reason to believe the minor was capable of contracting); see also Myers v. 
Hurley Motor Co., 273 U.S. 18, 22, 26-27 (1926) (allowing a set-off for depreciation 
when the minor only appeared to be of age but made no affirmative misrepresentation). 
The Supreme Court stated, "The defense, in effect, is that the plaintiff was guilty of 
tortious conduct to the injury of the defendant in the transaction out of which his own 
cause of action arose. In such case it is well settled that the relief is by way of 
recoupment." Myers, 273 U.S. at 27. 

44 CALAMARI & PERILLO, supra note 5, at § 8.3. 


parties to enter into such agreements without fear of the minor 
exercising their power of disaffirmance. 45 Therefore, for example, 
if the item purchased is deemed to be a necessary, the minor 
would either be liable for its reasonable value, or if allowed to 
disaffirm, for the reasonable value of its use and depreciation. 46 
This caveat is codified in some states. 47 

Some states also specify, by statute, other types of contracts 
that minors cannot avoid. 48 In order to bring "certainty and 
finality" with respect to certain dealings, legislatures prohibited 
minors from avoiding some obligations, 49 such as contracts for 
insurance 50 and student educational loans. 51 Other state laws 
provide a process for court approval of minors' contracts, resulting 
in a valid contract, but with the interest of protecting minors from 

45 See, e.g., Marshall v. Hous. Auth., 866 F. Supp. 999, 1005 (W.D. Tex. 1994) 
(determining that "whether or not lodging is a necessary is a question of fact to be 
determined by the jury"); Young v. Weaver, 883 So. 2d 234, 240-41 (Ala. Civ. App. 
2003) (holding that an apartment was not a necessity because the minor was able to 
return to her parents' home at any time); Schmidt v. Prince George's Hosp., 784 A.2d 
1112, 1125 (Md. 2001) (finding the minor liable for necessary medical treatment 
associated with a car accident when parents diverted insurance proceeds); Cidis v. 
White, 336 N.Y.S.2d 362, 363 (Nassau Cnty. Dist. Ct. 1972) (determining that contact 
lenses are necessaries and requiring the minor to pay their fair value); Gastonia Pers. 
Corp. v. Rogers, 172 S.E.2d 19, 24-25 (N.C. 1970) (concluding that the services of an 
employment agency could constitute a necessary if reasonably required in order to 
enable the minor to provide for himself and his dependents). 

46 Rose v. Sheehan Buick, Inc., 204 So. 2d 903, 905 (Fla. Dist. Ct. App. 1967) 
(holding that a car was a necessary item for the minor to carry out his business). 

47 See, e.g., IDAHO CODE ANN. § 32-104 (2011); MONT. CODE ANN. § 41-1-305 (2010); 

N.D. Cent. Code § 14-10-12 (2010). 

48 42 AM. JUR. 2d Infants § 46-56 (2010); see, e.g., Mo. REV. STAT. § 431.055 (2010) 
(allowing sixteen year olds, in certain circumstances, to contract for housing, 
employment, the purchase of an automobile, student loans, admission to high school or 
postsecondary school, medical care, establishing bank accounts, or services relating to 
being a victim of domestic or sexual violence). For a discussion of the relevance of such 
statutory exceptions to the NCAA NLOI program, see infra notes 107-23 and 
accompanying text. 

49 Cunningham, supra note 35, at 290; see also KY. REV. STAT. ANN. § 384.090 
(West 2010) (enforcing contracts of infants executed to obtain benefits of federal law 
providing for the making or guaranty of loans to war veterans). 

50 See, e.g., ARIZ. REV. STAT. ANN. § 20-1106 (2011) (allowing minors of at least 
fifteen years to contract for life or disability insurance); COLO. REV. STAT. § 10-4-104 
(2010) (allowing minors sixteen years or older to contract for property or liability 
insurance); MASS. GEN. LAWS ANN. ch. 175, § 128 (West 2010) (permitting minors 
fifteen years and over to contract for life insurance). 

51 See infra notes 72-73 and accompanying text. 


improvident transactions preserved. 52 While court approval of the 
contracts of minors makes them binding agreements, as does the 
approval of a contract by a court-appointed guardian, the approval 
of a minor's contract by a parent or other guardian usually will 
not alter the voidable nature of the agreement. 53 Minors may also 
seek court-sanctioned emancipation which would confer capacity 
to enter into contracts. 54 

Minors who reach the age of majority can ratify an 
agreement entered into during their minority, at which point the 
contract is no longer voidable. 55 Ratification consists of words or 
actions that indicate the minor chooses to be bound by a contract 
obligation entered into during minority. 56 For example, a person 
continuing to make payments on a credit sale after reaching the 
age of majority ratifies the agreement. A minor, of course, is 
incapable of ratifying an agreement during minority as such a 
purported ratification would result only in another voidable 

Because minors may only enter into voidable contracts, which 
is a principle maintained under the Uniform Commercial Code, 57 
often their parents will act as surety in order to motivate 
merchants to sell goods, such as cars, to their minor children. In 
such cases, if the minor exercises the power of avoidance, the 
parent would still be bound under the terms of the contract for the 

52 E.g., NEV. REV. STAT. ANN. § 609.550 (West 2010) (limiting minor's ability to 
dispute validity of contract approved by court). 

53 42 AM. JUR. 2D Infants § 40 (2010); see also Parrent v. Midway Toyota, 626 P.2d 
848, 850 (Mont. 1981) (holding that the minor was not bound even though a parent was 
present and approved without signing the agreement). 

54 See, e.g., KAN. STAT. Ann. § 38-108 (2011) (allowing district courts the authority 
to confer upon minors the rights of majority concerning contracts, and both real and 
personal property); OKLA. STAT. tit. 10, § 91 (2010) (allowing district courts to authorize 
and empower persons under the age of eighteen years to transact business). 

55 CalAMARI & PERILLO, supra note 5, at § 8.4. 

56 See, e.g., In re The Score Board, Inc., 238 B.R. 585, 593 (Bankr. D.N.J. 1999) 
(concluding that depositing a check in payment for the minor's performance after 
reaching majority age was conduct amounting to the ratification of a contract); Fletcher 
v. Marshall, 632 N.E.2d 1105, 1108 (111. App. Ct. 1994) (concluding that occupancy and 
payment of rent constituted an unequivocal ratification of a lease). 

57 Under the Uniform Commercial Code, a minor's contract with respect to the sale 
of goods is voidable. If the purchaser of a good from a minor subsequently sells that 
good to a good faith purchaser for value, that party no longer has a voidable title. 
Section 2-403(1) provides that "[a] person with voidable title has power to transfer a 
good title to a good faith purchaser for value." U.C.C. § 2-403(1) (1990). 


remaining payments. In sum, although there are exceptions to the 
rule that minors lack the contractual capacity required to 
consummate valid contracts, it is probably true everywhere that 
the great bulk of infants' transactions are voidable. 58 Presumably, 
the same conclusion is applicable with respect to the NLOI. 

III. Enforceability of Letters of Intent 

The first inquiry, of course, must be whether or not the NLOI 
constitutes a contract between the minor and the educational 
institution. 59 The general consensus is that the letter indeed does 
constitute an agreement between those two parties, according to 
both courts 60 and commentators. 61 As such, it is subject to normal 

58 CALAMARI & PERILLO, supra note 5, at § 8.3. 

59 Typically the consideration to support the letter of intent is the athlete's 
commitment in exchange for a full scholarship; however, as long as financial aid is 
promised by the institution, the NLOI agreement is binding as per NCAA rules. NLI 
Provisions: Financial Aid Requirement, NCAA, 
connect/nli/nli/nli+provisions/financial+aid (last visited Nov. 1, 2011). 

60 "The NLI is a contract which imposes obligations upon a prospective student- 
athlete and the university who executes it." Knapp v. Nw. Univ., No. 95 C 6454, 1996 
U.S. Dist. LEXIS 12463, at *2 (N.D. 111. Aug. 23, 1996), rev'd on other grounds, 101 F.3d 
473 (7th Cir. 1996); see also Pryor v. NCAA, 153 F. Supp. 2d 710, 717 (E.D. Pa. 2001) 
(referring in dicta to the NLOI as a contract with conditions); Treadwell v. St. Joseph 
High Sch., No. 98 C 4906, 1999 U.S. Dist. LEXIS 14733, at *17-18 (N.D. 111. Sept. 13, 
1999) (referring in dicta to the NLOI as a contract); Taylor v. Wake Forest Univ., 191 
S.E.2d 379, 382 (N.C. Ct. App. 1972) (holding that the relationship between a student- 
athlete and the university was contractual in nature); O'Brien v. Ohio St. Univ., No. 
06AP-946, 2007 Ohio App. LEXIS 4316, at *19 n.6 (Ohio Ct. App. Sept. 20, 2007) 
(stating that the NLOI acts as a contract between a school and a prospective student- 
athlete, giving notice to all other schools of the athlete's commitment to the school 
designated in the NLOI); Barile v. Univ. of Va., 441 N.E.2d 608, 615 (Ohio Ct. App. 
1981) (stating that the conclusion that the relationship between a student and a college 
is contractual in nature is particularly applicable to college athletes who contract by 
financial aid or scholarship agreement to attend college and participate in 
intercollegiate athletics). While the NLOI and its attending circumstances may 
constitute a contractual obligation, oral assurances of a position on an intercollegiate 
team may not be sufficient evidence of a contract. Giuliani v. Duke Univ., No. 
1:08CV502, 2009 U.S. Dist. LEXIS 44412, at *6-ll (M.D.N.C. May 19, 2009). 

61 Michael J. Cozzillio, The Athletic Scholarship and the College National Letter of 
Intent: A Contract by Any Other Name, 35 WAYNE L. REV. 1275, 1283-84 (1989); Kevin 
Stangel, Comment, Protecting Universities' Economic Interests: Holding Student- 
Athletes and Coaches Accountable for Willful Violations of NCAA Rules, 11 Marq. 
SPORTS L. REV. 137, 140-47 (2000); see also Derek Quinn Johnson, Note, Educating 
Misguided Student Athletes: An Application of Contract Theory, 85 COLUM. L. REV. 96, 
114-17 (1985) (asserting that "the financial aid statement, the letter of intent, the 


contract law principles such as the satisfaction of express 
conditions, for example. 62 However, while the NLOI agreement is 
between the member universities and the athlete, the penalty for 
breaching the agreement, i.e., the rule that the student athlete be 
precluded from participating at another member institution for a 
period of time, 63 is enforced by the NCAA's NLOI program, which 
is not a party to the agreement. Is this fact significant? 

In Oliver v. NCAA 64 the court acknowledged as obvious the 
absence of a contractual relationship between the student-athlete 
and the NCAA, characterizing it as "an unincorporated association 
consisting of public and private universities and colleges" that 
"adopts rules governing member institutions' recruiting, 
admissions, academic eligibility, and financial-aid standards for 
student athletes." 65 Nevertheless, it did view the student athlete's 
relationship to the NCAA as that of a third-party beneficiary, 
stating that it was "unquestionable" that the contractual 
relationship between the NCAA and its member institutions was 
created to confer a benefit on student-athletes. 66 As a result, it 
concluded that any arbitrary and capricious action by the NCAA 
would violate the duty of good faith and fair dealing that is 
implied in the contractual relationship between the NCAA and its 
members, affording the student-athlete, as a third-party 
beneficiary of that contractual relationship, standing to sue. 67 

Similarly, the sanctions imposed by the NCAA against 
schools which would seek to sign minors who disaffirm a NLOI, as 
well as against minors who exercise that right and are effectively 

university bulletin, the general catalogue, and the various brochures and pamphlets, as 
well as the negotiations between the parties," manifest the existence of a contract); 
Fried & Hiller, supra note 19, at 643-44; Pernell, supra note 23, at 284; Riella, supra 
note 1, at 2193-96. 

62 For example, the NLOI may be predicated on the achievement by the student- 
athlete of a satisfactory grade point average or college admission test score. Pryor, 153 
F. Supp. 2d at 718; Hall v. NCAA, 985 F. Supp. 782, 785-87 (N.D. 111. 1997). 

63 See supra notes 22-24 and accompanying text. 

64 920 N.E.2d 203 (Ohio Ct. Com. PL 2009). 

65 Id. at 210-11. 

66 Id. at 211. 

67 Id. at 212. The judgment was later vacated by the settlement in the case. For a 
discussion of the case and its potential ramifications, see Richard G. Johnson, 
Submarining Due Process: How the NCAA Uses Its Restitution Rule to Deprive College 
Athletes of Their Right of Access to the Courts . . . Until Oliver v. NCAA, 1 1 FLA. 

Coastal L. Rev. 459 (2010). 


prevented from competing in intercollegiate athletics for a period 
of time, also are arbitrary and capricious and a breach of the duty 
of good faith and fair dealing arguably inherent in the contract 
between the NCAA's NLOI program and its member schools. As a 
result, the same argument made in Oliver should apply to allow 
the student-athlete as a third-party beneficiary to hold the NCAA 
liable for enforcing a rule that strips the minor of his right to 
disaffirm an agreement. 68 So at first blush, it seems that the 
NLOI is a voidable contract between the university and the 
student-athlete. Moreover, it seems that the NLOI program rules 
and agreement, which purportedly ban member institutions from 
signing an athlete who rightfully exercises that right to disaffirm, 
are contrary to public policy, and that such an argument could be 
raised successfully by the athlete as a third-party beneficiary. 
Nevertheless, several arguments grounded in the contract law 
previously discussed, 69 emerge which potentially could be used to 
find a legal commitment in letters of intent. 

A. Education as a Necessary? 

As previously mentioned, minors are liable for the reasonable 
value of their necessaries. 70 Is education deemed to be a 
necessary, so that a minor-athlete, who receives a college 
education in exchange for the promise to play exclusively for the 
institution, would be bound to the agreement? While a certain 
level of education may be considered necessary under common law 
precedent, typically a college education is not considered to be a 
necessary. 71 Nevertheless, educational loans are enforceable by 
statute in some jurisdictions, such as those which have adopted 
the Model Minor Students Capacity to Borrow Act 12 or a similar 

68 See also Bloom v. NCAA, 93 P.3d 621, 624 (Colo. App. 2004) (holding that a 
student-athlete had third-party beneficiary status to pursue a claim). 

69 See supra notes 32-58 and accompanying text. 

70 See supra notes 44-47 and accompanying text. 

71 42 AM. JUR. 2D Infants § 69 (2010). "Under present day conditions, as in the 
past, a college education is not, as matter of law, a necessary, though very likely 
circumstances could be shown which would warrant that conclusion as matter of fact." 
Moskow v. Marshall, 171 N.E. 477, 479 (Mass. 1930) (citation omitted). 

72 Under the Model Minor Student Capacity to Borrow Act, any written obligation 
signed by a minor sixteen years old or older 


law. 73 Even if an argument could be made effectively that in 
today's society a college education is reasonably necessary to 
maintain one's station in life, there are other means of securing 
financial support than through an athletic scholarship. 74 

B. Parental Approval? 

Is the fact that the parent or guardian signed the NLOI of 
legal significance? Assuming that the parent or guardian is not 
court-appointed to transact business on behalf of the minor, 75 the 
approval of the agreement by the parent should bear no 
significance on the otherwise voidable agreement. 76 To hold 
otherwise installs parents as de facto agents: 

in consideration of an educational loan received by the minor from any person 
is enforceable as if the minor was an adult at the time of execution, but only 
if prior to the making of the educational loan an educational institution has 
certified in writing to the person making the educational loan that the minor 
is enrolled, or has been accepted for enrollment, in the educational 

N.D. CENT. CODE § 14-10.2-02 (2011). The act has also been adopted by Arizona. Ariz. 
REV. STAT. § 44-140.01 (LexisNexis 2011). 

73 See, e.g., ALASKA STAT. § 14.43.140 (2011) (enforcing a written obligation entered 
into by sixteen-year-old minor "for the purpose of furthering the minor's education in a 
career program or an institution of higher learning"); Ga. CODE ANN. § 13-3-23 (2011) 
(providing that contracts, notes, or other evidence of indebtedness "executed by a minor 
for a loan from any trust fund for educational purposes to any educational institution 
shall be valid and binding"); Mo. REV. STAT. § 431.067 (2010) (permitting minors to 
"contract to borrow money to defray the necessary expenses of attending any accredited 
university, college, or conservatory"); N.J. STAT. ANN. § 18A:7lC-9 (2011) (making 
educational loans executed by minors valid); N.C. GEN. STAT. § 116-174.1 (2010) 
(granting minors of seventeen years the authority to execute loans for obtaining a 
secondary education); WASH. REV. CODE ANN. § 26.30.020 (West 2011) (making written 
obligation signed by a minor sixteen years old or older for educational loans 

74 For example, Federal Student Aid delivered approximately $100 billion in 
financial aid to almost eleven million students and families in 2008. U.S. Department 
of Education Expands Its Student Loan Servicing Capacity, U.S. DEPT. EDUC. (June 17, 

75 Additionally, some statutes may permit parental consent to bind the minor with 
respect to specific agreements. See IND. CODE ANN. § 22-3-2-15(c) (West 2011) 
(providing that a minor dependent, by parent or legal guardian, may compromise 
worker's compensation disputes and may enter into a compromise settlement upon 
approval by a member of the worker's compensation board). 

76 At common law, an infant could disaffirm his written consent as well as a 
consent executed by another on his or her behalf. Shields v. Gross, 448 N.E.2d 108, 110 


The selection of a proper agent requires the exercise of as 
much discretion as the making of a contract. To bind an 
infant by the act of an agent, when he would not be bound if 
the act were done by himself, is to allow him to be 
overreached indirectly, and so do away with the safeguards 
provided by law for his protection. 77 

For example, in NYC Management Group, Inc. v. Brown- 
Miller, a minor signed a standard contract which stated the 
performance required of her as a model. 78 Her mother signed the 
agreement as well, indicating "her assent to her daughter's entry 
into the agreement without assuming any obligation of her own." 79 
The court noted that "[s]uch indications of parental approval are 
not enough to override the right of the child to disaffirm her own 
contracts." 80 Similarly, the parent's assent to the NLOI is not 
sufficient to override the minor's right to disaffirm. 

Parents, however, can become co-signors of obligations as a 
surety, which does not obligate the minor to perform, but rather 
acts as insurance against the minor's n-on-performance. Typically, 
in a surety arrangement, if the minor defaults, the parents must 
perform the contract. That solution is not available with respect to 
the NLOI program, as the parent signing for the minor would not 
be asked to step in and play. 81 In fact, specific performance by the 

(N.Y. 1983) (citing cases); see also Schmidgall v. Engelke, 224 N.E.2d 590, 590 (111. App. 
Ct. 1967) ("Minor's right to disaffirm his contract is not affected by parental approval, 
and a parent by his relationship to minor is without authority to enter into contracts 
binding on a minor."); Hogue v. Wilkinson, 291 S.W.2d 750, 755 (Tex. Civ. App. 1956) 
(stating that "[e]ven if the mother and grandfather had signed the written contracts as 
agents of the minor plaintiff, such contracts would not have bound the minor if he 
wished to disaffirm"); Bombardier v. Goodrich, 110 A. 11, 11 (Vt. 1920) ("The assent of 
the father adds nothing to the binding force of an infant's promise."); Hines v. 
Cheshire, 219 P.2d 100, 104 (Wash. 1950) ("[T]he law seems to be settled that an infant 
is not precluded from disaffirming by reason of the fact that an adult joined with him 
in signing the contract."). 

77 Vogelsang v. Null, 3 S.W. 451, 452 (Tex. 1887). 

78 No. 03 Civ. 2617 (RJH), 2004 U.S. Dist. LEXIS 8652 (S.D.N.Y. May 14, 2004). 

79 Id. at* 16. 

80 Id.; see also Berg v. Traylor, 56 Cal. Rptr. 3d 140, 147-48 (Cal. Ct. App. 2007) 
(allowing a minor to disaffirm a contract to secure personal management services for 
the purpose of advancing the minor's acting career, even though his mother co-signed 
the agreement). 

81 "Still, the unique problem with the NLOI is that the cosigner is the student- 
athlete's parent or guardian. The cosigner cannot give the university what it 
wants — the athletic services of the minor student-athlete. Thus, enforcing the 


minor of the agreement would not be enforced against the party to 
the NLOI if the athlete were not a minor either, as the order to 
perform a contract involving personal services is usually 
unavailable as a remedy for breach of contract. 82 Since the parents 
of a student-athlete can in no way be a secondary obligor should 
the minor fail to perform, the requirement of a parent's signature 
is misleading at best, and has a chilling effect on the minor's 
common law right to disaffirm. 83 

Further, whereas a court-appointed guardian owes a 
fiduciary duty to the minor or otherwise incompetent party as a 
representative in legal proceedings, 84 no fiduciary relationship to 
exercise care in transacting business arises simply by virtue of the 
parental relationship. As a result, there is no legal guarantee that 
the best interests of the child will be served with parental 
approval alone, or that a remedy will exist for any failure to 
adhere to a fiduciary standard of care in transacting business on 
behalf of the minor. In fact, the doctrine of familial immunity 
could preclude any recourse by the minor against the parent who 
acted negligently and in contrast to the minor's best interests. 85 

Moreover, it is a distinct possibility that the interests of the 
parents and the minor could diverge in selecting an institute of 
higher education, and that some over-reaching by the parent could 
occur in the selection process. For example, the mother of a 

agreement through the cosigner is of negligible utility to the university." Cozzillio, 
supra note 61, at 1327. 

82 See Tamarind Lithography Workshop, Inc. v. Sanders, Civ. No. 66492, 1983 Cal. 
App. LEXIS 1788, at *14-15 (Ct. App. Apr. 28, 1983) (stating the general rule that the 
specific performance, as a remedy, is only available when damages at law are 
inadequate); see also Felch v. Findlay Coll., 200 N.E.2d 353, 355 (Ohio Ct. App. 1963) 
(concluding that equity will not grant specific performance of affirmative promises in a 
personal service contract). 

83 But see Cozzillio, supra note 61, at 1326. Professor Cozzillio claims that the 
NLOI intercepted potential problems in the student-athlete's lack of capacity by 
requiring a co-signature by the parent or guardian. "This requirement allows the 
Letter of Intent to exist as a viable agreement . . . ." Id. 

84 42 AM. JUR. 2D Infants § 160 (2010). 

85 For a discussion of tort immunity among family members, see Brenda K. 
Harmon, Note, Parent-Child Tort Immunity: The Supreme Court of Illinois Finally 
Gives This Doctrine the Attention It's Been Demanding: Cates v. Cates, 156 III. 2d 76, 
619 N.E.2d 715 (1993), 19 S. ILL. U. L.J. 633 (1995). Waivers of immunity are usually 
found only in unique circumstances that overcome the policy behind such immunity, 
that is, the peace of the home. See, e.g., Henderson v. Woolley, 644 A.2d 1303, 1308-09 
(Conn. 1994) (permitting lawsuit for sexual abuse). 


prospective athlete recently forged his letter of intent, mistakenly 
signing with a university for which the athlete had chosen not to 
play. 86 The alleged activities of Heisman Trophy winner Cam 
Newton's father also suggest that inappropriate requests for the 
services of his son were made to intercollegiate athletic 
programs. 87 Furthermore, under current NCAA restrictions, an 
agent cannot represent minor-athletes. 88 If the minor could be 
represented by an agent, then at least a cause of action could be 
allowed against the agent for a failure to act in the minor's best 
interests and to exercise care. 89 

Granted, if the NLOI contained a liquidated damages clause 
in the event of the minor's breach, then the feasibility of a parent 
serving as a guarantor of that obligation by paying the agreed- 
upon damages is more realistic. But even that type of 
arrangement still might be questionable since it could be viewed 
as being tantamount to imposing a penalty for minor athletes 
exercising their common law right to disaffirm. 90 If the liquidated 
damages clause was limited to the reliance expenses incurred in 
recruiting the student-athlete or to scholarship monies committed 
and effectively lost if the student disaffirms, then it arguably 

86 Recruit Confirms Mom Forged Signature, ESPN.COM (Feb. 3, 2011 1:39 PM), 
http://sports.espn. go. com/ncaa/recruiting/football/news/story?id=6084711. 

87 It was reported that the athlete's father told university officials that schools 
recruiting the quarterback would have to come up with money beyond a scholarship to 
secure his services. Thayer Evans, Report: Newton, Father Sought Money, FOX SPORTS 
(Nov 11, 2010 2:08 PM), 
qb-and-father-sought-money-from-colleges- 110910. 

88 Richard T. Karcher, The NCAA's Regulations Related to the Use of Agents in the 
Sport of Baseball: Are the Rules Detrimental to the Best Interest of the Amateur 
Athlete?, 7 VAND. J. ENT. L. & PRAC. 215, 216 (2005); see also T. Matthew Lockhart, 
Comment, Oliver v. NCAA' Throwing a Contractual Curveball at the NCAA's 'Veil of 
Amateurism," 35 U. DAYTON L. REV. 175 (2010) (discussing a case challenging the 
NCAA's no-agency rules); Brandon D. Morgan, Oliver v. NCAA: NCAA s No Agent Rule 
Called Out, but Remains Safe, 17 SPORTS L.J. 303, 312-16 (2010) (arguing that having 
proper representation does not make the student-athlete a professional). 

89 "An agent has a fiduciary duty to act loyally for the principal's benefit in all 
matters connected with the agency relationship." RESTATEMENT (THIRD) OF AGENCY § 
8.01 (2006). 

90 Damages may be liquidated in the agreement at an amount that is "reasonable 
in the light of the anticipated or actual loss caused by the breach and the difficulties of 

proof of loss." Restatement (Second) of Contracts § 356 (1981). A contract provision 

that sets an unreasonably large sum of liquidated damages is "unenforceable on 
grounds of public policy as a penalty." Id. 


could be enforced. 91 But reimbursement and recoupment are not 
what the NCAA member schools desire as part of the bargaining 
process. The basic penalty instead is designed to act as a deterrent 
to allowing a minor to change their mind — a recognized right the 
common law permits. 

C. Employment Contracts? 

What about contracts associated with the minor's 
employment? Some states will recognize the liability of a minor 
with respect to contracts associated with a business operated by 
the minor. 92 Generally, however, contracts for the provision of 
labor or services are voidable at the election of the minor. 93 
Student-athletes are not viewed as employees under most state 
laws with respect to workers' compensation statutes, 94 so it is 

91 Typically under contract law liquidated damages that are designed to penalize a 
breaching party rather than to protect the expectation interests of an innocent party 
are unenforceable. See, e.g., Cal. & Haw. Sugar Co. v. Sun Ship, Inc., 794 F.2d 1433, 
1436 (9th Cir. 1986) (determining that the liquidated damages agreed upon were 
reasonable in light of the anticipated harm); Mason v. Fakhimi, 865 P. 2d 333, 335-36 
(Nev. 1993) (upholding a liquidated damage clause as being valid and not a penalty 
when actual monetary harm was less); City of Rye v. Pub. Serv. Mut. Ins. Co., 315 
N.E.2d 458, 459 (N.Y. 1974) (concluding that a liquidated damages provision was a 
penalty provision since the harm for which it was designed to compensate was minimal 
and speculative); Watson v. Ingram, 851 P.2d 761, 764 (Wash. Ct. App. 1993) (stating 
the general rule that liquidated damages clauses must be a reasonable forecast of just 
compensation for the harm that is caused by the breach). 

92 Juanda Lowder Daniel, Virtually Mature: Examining the Policy of Minors' 
Incapacity to Contract Through the Cyberscope, 43 GONZ. L. REV. 239, 247-48 (2007) 
(arguing that the cognitive ability of minors counsels in favor of greater accountability); 
Larry A. DiMatteo, Deconstructing the Myth of the "Infancy Law Doctrine": From 
Incapacity to Accountability, 21 OHIO N.U. L. REV. 481, 511-14 (1995) (arguing for 
greater accountability for minors). A state statute could recognize such liability. See 
Ga. CODE Ann. § 13-3-21 (2011) (providing that if "a minor, by permission of his parent 
or guardian or by permission of law, practices any profession or trade or engages in any 
business as an adult, he shall be bound for all contracts connected with such 
profession, trade, or business"); see also Pankas v. Bell, 198 A.2d 312, 315 (Pa. 1964) 
(enforcing a minor's restrictive covenant in an employment contract). 

M 42 AM. JUR. 2D Infants §§ 54-56 (2010). 

94 Michael J. Mondello & Joseph Beckham, Workers' Compensation and Collegiate 
Athletes: The Debate Over the Pay for Play Model: A Counterpoint, 31 J.L. & EDUC. 293, 
295-99 (2002) (discussing case law). 


unlikely that their relationship to the university would be viewed 
as one of employment anyway. 95 

Moreover, the agreement itself acts similarly to restrictive 
covenants in employment contracts. A similar argument has been 
made with respect to the NCAA's anti-transfer rules, by which 
students who transfer are required to satisfy a one-year residency 
rule. 96 The failure to comply with the letter of intent produces the 
same result. If the agreement is breached, the student athlete is 
precluded from playing for another school for a year. 97 Restrictive 
covenants are often viewed with disdain by courts because they 
restrict the ability of parties to the contract to earn a living, 98 and 
they are often examined for legality on reasonableness grounds. 99 
Some states provide, by statute, additional criteria for examining 
the enforceability of covenants not to compete, as well. 10 ° The fact 
that the NLOI agreement resembles a restrictive covenant in an 
employment contract, if anything, strengthens the argument that 

93 But see Robert A. McCormick & Amy Christian McCormick, The Myth of the 
Student- Athlete: The College Athlete as Employee, 81 WASH. L. REV. 71 (2006) 
(concluding that NCAA athletes in Division I meet both the common law and statutory 
standards for classification as employees under the National Labor Relations Act); 
Nathan McCoy & Kerry Knox, Comment, Flexing Union Muscle — 7s It the Right Game 
Plan for Revenue Generating Student-Athletes in their Contest for Benefits Reform with 
the NCAA?, 69 TENN. L. REV. 1051, 1065 (2002) (concluding that the National Labor 
Relations Board should recognize student-athletes as university employees with rights 
enumerated under the National Labor Relations Act). 

96 Ray Yasser & Clay Fees, Attacking the NCAA's Anti-Transfer Rules as Covenants 
Not to Compete, 15 Seton Hall J. SPORTS & ENT. L. 221, 233-50 (2005). 

97 See supra notes 22-24 and accompanying text. 

98 See, e.g., Bellsouth Corp. v. Forsee, 595 S.E.2d 99, 105 (Ga. Ct. App. 2004) 
(affirming that the restrictive covenant must specify with particularity the nature of 
the business activities to be restrained); VisionAIR, Inc. v. James, 606 S.E.2d 359, 362 
(N.C. Ct. App. 2004) (reiterating that covenants not to compete between an employer 
and an employee are not viewed favorably). 

99 See, e.g., Borden, Inc., v. Smith, 478 S.W.2d 744, 747 (Ark. 1972) (refusing to 
enforce an overly broad restrictive covenant or to enforce the covenant to the extent 
that would be reasonable); Stultz v. Safety & Compliance Mgmt., Inc., 648 S.E.2d 129, 
131 (Ga. Ct. App. 2007) (applying a three-element test of duration, territorial coverage, 
and scope of activity for examining reasonableness); Am. Sec. Servs., Inc., v. Vodra, 385 
N.W.2d 73, 80 (Neb. 1986) (finding a three-year restraint to protect the goodwill of the 
employer was not unreasonable); Okuma Am. Corp. v. Bowers, 638 S.E.2d 617, 620 
(N.C. Ct. App. 2007) (listing six factors to consider to examine the reasonableness of a 
restrictive covenant). 

100 See, e.g., A.E.P. Indus., Inc. v. McClure, 302 S.E.2d 754, 760 (N.C. 1983) 
(requiring an agreement not to compete to be in writing and ancillary to an 
employment contract). 


the agreement should be voidable to protect the minor student- 

Further, the basic penalty of the NLOI agreement is indeed 
somewhat punitive in nature. 101 Punitive damages are disfavored 
in contract law, absent a public policy justification. 102 The most 
glaring public policy argument in this situation is that of 
protecting the minor from such a one-sided agreement. While the 
NLOI program clearly benefits member schools by ordering the 
process and making recruitment and retention of athletes more 
predictable, it is not readily apparent that the student-athlete 
necessarily benefits from those goals, nor that the program was 
instituted with the protection of the student-athlete in mind. 

Courts are reluctant to intervene in the internal affairs of the 
NCAA as a voluntary association, 103 and pay deference to their 
internal governance regulations, subjecting them to an arbitrary 
and capriciousness standard. 104 However, if the NLOI program 
sanctioned a member for signing a minor-athlete who had 
repudiated his or her letter of intent, such an action in effect 
would be tantamount to enforcing the agreement in contravention 
of the minor's right to disaffirm — arguably an arbitrary and 
capricious action without apparent justification that properly 
considers what is in the best interest of the minor. 105 As a result, 

101 See supra notes 22-24 and accompanying text (discussing the provisions of the 
basic penalty). 

102 "Punitive damages are not recoverable for a breach of contract unless the 
conduct constituting the breach is also a tort for which punitive damages is 
recoverable." RESTATEMENT (SECOND) OF CONTRACTS § 355 (1981). 

103 See, e.g., Tanaka v. Univ. of So. Cal., 252 F.3d 1059, 1063-64 (9th Cir. 2001) 
(upholding transfer rules against an antitrust challenge); NCAA v. Yeo, 171 S.W.3d 
863, 869-70 (Tex. 2005) (upholding transfer rules against a constitutional challenge); 
see also Joel Eckert, Note, Student-Athlete Contract Rights in the Aftermath of Bloom v. 
NCAA, 59 VAND. L. REV. 905, 913 (2006) (discussing the arbitrary and capricious 
standard of review of NCAA actions). Although it can be argued that there is little 
choice but to become a member, no court has held that the association is not voluntary. 
Doug Bakker, NCAA Initial Eligibility Requirements: The Case Law Behind The 
Changes, 3 DEPAUL J. SPORTS L. & CONTEMP. PROBS. 160, 162-64 (2006). 

104 See Cole v. NCAA, 120 F. Supp. 2d 1060, 1071-72 (N.D. Ga. 2000); NCAA v. 
Lasege, 53 S.W.3d 77, 83-87 (Ky. 2001). But see Oliver v. NCAA, 920 N.E.2d 203, 214 
(Ohio Ct. Com. PI. 2009) (finding the NCAA's "No Agent Rule" to be arbitrary and 

105 See, e.g., Sheldon Elliot Steinbach, NCAA v. Lasege and Judicial Intervention in 
Educational Decisions: The Kentucky Supreme Court Shoots an Air Ball for Kentucky 


it is unlikely that such an action, though seemingly only involving 
actions against a member, would be a candidate for deferential 
treatment by the judiciary. 106 

D. Statutory Exceptions for Minors in the Sport and 
Entertainment Industry 

Given the prevalence of minor professional athletes and 
entertainers, some states have enacted specific statutes that 
recognize the validity of such contracts for professional services, 
provided the statutory requirements are met. 107 Legislatures 
enacted these statutes based on the common law principle that an 
infant could disaffirm agreements executed by themselves, as well 
as those executed by another on their behalf. 108 Many of these 
statutes establish a detailed procedure for court approval of the 
contract so that the adult party can be assured of a binding 
obligation. 109 For example, California's "Coogan" law (named for 
1920s child star Jackie Coogan), which covers minors who are to 
render artistic or creative services, either directly or through a 
third party, allows for court approval of their contracts, and 
permits courts to establish trust funds for their earnings. 110 An 

Higher Education, 90 Ky. L.J. 329, 344 (2002) (arguing that voluntary associations in 
higher education should be free to maintain standards when doing so violates no law). 

106 See Gordon E. Gouveia, Making a Mountain Out of a Mogul: Jeremy Bloom v. 
NCAA and Unjustified Denial of Compensation Under NCAA Amateurism Rules, 6 
VAND. J. ENT. L. & PRAC. 22, 32 (2003) (arguing that inequity of NCAA rules coupled 
with the NCAA's inflexibility should prompt student-athletes to seek redress in courts 
and state legislatures). 

107 p or a discussion of state regulation of the entertainment industry and 
participants who are minors, see Ben Davis, A Matter of Trust for Rising Stars: 
Protecting Minors' Earnings in California and New York, 27 J. JUV. L. 69 (2006); 
Heather Hruby, Comment, That's Show Business Kid: An Overview of Contract Law in 
the Entertainment Industry, 27 J. JUV. L. 47 (2006); and Jessica Krieg, Comment, 
There's No Business Like Show Business: Child Entertainers and the Law, 6 U. PA. J. 
LAB. & EMP. L. 429 (2004). 

108 Shields v. Gross, 448 N.E.2d 108, 110-12 (N.Y. 1983). 

109 42 AM. JUR. 2D Infants § 55 (2010). Other state statutes allow for court approval 
of other types on contracts as well. See, e.g., D.C. CODE § 21-146 (2011) (allowing court 
approval of joint contract between minor and adult party for the sale of real estate). 

110 CAL. FAM. CODE §§ 6750-53 (2010). For a critical analysis of the law and its 
subsequent amendments, see Peter M. Christiano, Saving Shirley Temple: An Attempt 
to Secure Financial Futures for Child Performers, 31 McGEORGE L. Rev. 201 (2000); 
Shayne J. Heller, Legislative Updates, The Price of Celebrity: When a Child's Star- 
Studded Career Amounts to Nothing, 10 DEPAUL-LCA J. ART & ENT. L. & POL'Y 161 


Illinois statute also allows for court approval of a contract for 
minors to render artistic or creative services, m while a 
Massachusetts law provides for court approval of entertainment 
contracts for performances by minors, including modeling. 112 
Other statutes allow for court approval of contracts between 
minors and talent agencies. 113 

Most state contract and labor laws focus on children who 
pursue careers in the entertainment industry rather than child 
athletes. 114 However, some state statutes cover both 
entertainment contracts as well as agreements relating to sports. 
New York law provides for judicial approval of the contract if the 
"infant is to perform or render services as an actor, actress, 
dancer, musician, vocalist or other performing artist, or as a 
participant or player in professional sports . . . ," 115 Florida law 
also provides for court approval of contracts by minors to perform 
or render artistic or creative services, or services "as a participant 
or player in professional athletics or semiprofessional athletics." 116 
Texas law allows a court, upon petition of the guardian of the 
estate of the minor, to enter an order approving "an arts and 
entertainment contract, advertisement contract, or sports contract 
that is entered into by a minor," without specifying that the 
contract be for professional services. 117 The North Carolina 
statute, which was at issue in the case discussed in the 

(1999); and Thom Hardin, Note, The Regulation of Minors' Entertainment Contracts: 
Effective California Law or Hollywood Grandeur?, 19 J. JUV. L. 376 (1998). See also 
Davis, supra note 107, at 70-76; Krieg, supra note 107, at 433-38. 

111 820 III. Comp. Stat. Ann. 20/1 (West 2011). 

» 2 Mass. Gen. Laws Ann. ch. 231, § 85P1/2 (West 2010). 

113 E.g., CAL. LAB. CODE § 1700.37 (West 2010); N.C. GEN. STAT. §§ 48A-17, -18 

114 See Erica Siegel, Note, When Parental Interference Goes Too Far: Tlie Need for 
Adequate Protection of Child Entertainers and Athletes, 18 CARDOZO ARTS & ENT L.J. 
427 (2000) (arguing for a federal law to protect child super-athletes). 

115 N.Y. ARTS & CULT. AFF. Law § 35.03(1) (McKinney 2011) (emphasis added). For 
a discussion of the New York law, see Davis, supra note 107, at 76-79, and Krieg, supra 
note 107, at 440-42. 

116 FLA. STAT. ANN. § 743.08(l)(a)-(b) (West 2010) (emphasis added). For a 
discussion of the Florida law, see Stephen M. Carlisle & Richard C. Wolfe, Florida's 
New Child Performer and Athlete Protection Act: Or Wliat to Do When Your Client Is a 
Child, Not Just Acting Like One, 69 FLA. B.J. 93 (1995). See also Krieg, supra note 107, 
at 438-40. 

117 TEX. ESTATES CODE § 903 (2010) (emphasis added) (taking effect in 2014). 


introduction, 118 provides for court approval of a "contract pursuant 
to which a person is employed or agrees to render services as a 
participant or player in a sport," 119 as well as for financial 
safeguards 120 and the establishment of a trust. 121 

It would seem, however, that few, if any, of these statutes 
contemplate participation in intercollegiate athletics, as most 
address some sort of payment structure coupled with a financial 
interest to protect. Therefore, it is likely that these statutes 
providing for court approval of contracts for the services of child 
performers are neither relevant nor applicable to collegiate 
participation. 122 Moreover, an expansive reading of these statutes 
to include non-professional athletes is ill-advised since statutes 
that are in derogation of the common law should be construed 
strictly. 123 

Certainly in practice, court approval of NLOI agreements has 
not been sought. Seeking court approval of the thousands of NLOI 
agreements likely would not be feasible anyway, and if sought, 
such approval would likely be perfunctory at best, since the 
continuing need to ensure protection of the minor's financial 
estate is not necessary in amateur athletics. More significantly, 
minors do not need the defense that the NLOI was not court- 
approved in those states with a statute that arguably covers 
student-athletes. Student-athletes, who are minors when they 
sign, remain free to disaffirm their NLOI agreements anyway, not 
only before they reach the age of majority, but also for a 
reasonable time thereafter, provided they do not perform some act 
inconsistent with the intent to exercise the power of avoidance, 
such as participating in practices or otherwise indicating 
unequivocally their intent to be bound after reaching their 
eighteenth birthday. 

118 See supra notes 2-4 and accompanying text. 

119 N.C. Gen. Stat. § 48A-ll(3) (2010). 

120 Id. §§ 48A-14, -15. 

121 Id. § 48A-16. 

122 But see Cozzillio, supra note 61, at 1328 (asserting that the NLOI could be 
covered with "broad legislation that prohibits disaffirmance by infant athletes and 

123 Shields v. Gross, 448 N.E.2d 108, 111 (N.Y. 1983). 


IV. Implications Going Forward 

A. Policy Considerations 

Arguably there is a need for higher standards of fairness in 
relationships between the NCAA and student-athletes, and NCAA 
rules fail to separate the interests of student-athletes from the 
interests of their universities. 124 "Comparable bargaining power 
does not exist at the core of the student-athlete/university 
relationship." 125 That observation can be extended to the athletic 
scholarship and how it structures the relationship between the 
NCAA, the university, and the student-athlete, limiting the term 
to renewable annual contracts, at the option of the university. 126 
"As it exists today, the athletic scholarship contract is an 
unconscionable contract of adhesion, inconsistent with the 
important NCAA principles of student-athlete welfare and 
amateurism." 127 

Further, it is questionable whether or not the educational 
pursuit is indeed less important than the exploitation of the young 
person's athletic ability for financial gain. 128 A 1995 study of the 
decisional structures of the NCAA revealed seven characteristics 
that cast a degree of doubt upon whether or not the process 
accurately promotes the notion that one's status as a student 

124 Brian L. Porto, Note, Balancing Due Process and Academic Integrity in 
Intercollegiate Athletics: The Scholarship Athlete's Limited Property Interest in 
Eligibility, 62 IND. L.J. 1151, 1169-73 (1987). 

125 Timothy Davis, College Athletics: Testing the Boundaries of Contract and Tort, 
29 U.C. Davis L. Rev. 971, 1016 (1996). 

126 See Daniel Nestel, Note, Athletic Scholarships: An Imbalance of Power Between 
the University and the Student -Athlete, 53 OHIO ST. L.J. 1401, 1407-08 (1992) (urging 
for the reform of the current one-year scholarship agreement). 

127 Sean M. Hanlon, Athletic Scholarships as Unconscionable Contracts of Adhesion: 
Has the NCAA Fouled Out?, 13 SPORTS L.J. 41, 76 (2006); see also Riella, supra note 1, 
at 2210-15 (applying the doctrines of procedural and substantive unconscionability to 
the NLOI). 

128 Universities in fact may hinder their student-athletes' ability to receive a 
meaningful education. Monica L. Emerick, Comment, The University /Student- Athlete 
Relationship: Duties Giving Rise to a Potential Educational Hindrance Claim, 44 
UCLA L. REV. 865, 890-98 (1997); see also Michael R. Lufrano, Tlie NCAA's 
Involvement in Setting Academic Standards: Legality and Desirability, 4 SETON HALL 
J. SPORTS L. 97 (1994) (discussing the NCAA's regulation of eligibility standards). 


should take precedence over one's status as an athlete. 129 As a 
result of such concerns, reforms have been proposed to re-focus 
collegiate athletics on the education — not the exploitation — of the 
student-athlete. 130 Recent cases and commentaries have 
questioned another alleged form of exploitation by the NCAA and 
its members: the student-athlete's common law right of 
publicity. 131 For example, Hall of Fame basketball player Oscar 
Robertson is among three former college athletes who filed suit 

129 John R. Allison, Rule-Making Accuracy in the NCAA and Its Member 
Institutions: Do Their Decisional Structures and Processes Promote Educational 
Primacy for the Student-Athlete? 44 U. KAN. L. REV. 1, 56 (1995) (identifying seven 
characteristics which question the purported primacy of the educational goal and 
exploring potential remediation strategies). 

130 See, e.g., Louis Hakim, The Student-Athlete vs. The Athlete Student: Has the 
Time Arrived for an Extended-Term Scholarship Contract?, 2 VA. J. SPORTS & L. 145, 
170-71 (2000) (arguing for a four or five year scholarship contract wherein the student- 
athlete and institution are bound to an extended-term commitment so as to aid the 
student-athlete's ability to obtain an educational degree); Rodney K. Smith & Robert D. 
Walker, From Inequity to Opportunity: Keeping the Promises Made to Big-Time 
Intercollegiate Student-Athletes, 1 NEV. L.J. 160, 163-69 (2001) (discussing models for 
dealing with problems of economic inequity and the slippage in educational values 
plaguing intercollegiate athletics); Harold B. Hilborn, Comment, Student-Athletes and 
Judicial Inconsistency: Establishing a Duty to Educate as a Means of Fostering 
Meaningful Reform of Intercollegiate Athletics, 89 Nw. U. L. REV. 741, 757-58 (1995) 
(urging courts to acknowledge an actionable duty to educate based on the special 
relationship between the university and student-athletes); see also Robert A. 
McCormick & Amy Christian McCormick, A Trail of Tears: The Exploitation of the 
College Athlete, 11 FLA. COASTAL L. REV. 639 (2010) (discussing exploitation generally). 

131 See Kristine Mueller, No Control Over Their Rights of Publicity: College Athletes 
Left Sitting the Bench, 2 DePAUL J. SPORTS L. & CONTEMP. PROBS. 70, 97-99 (2004) 
(examining the assignment of the right of publicity by college athletes); Kristal S. 
Stippich & Kadence A. Otto, Carrying a Good Joke Too Far? An Analysis of the 
Enforceability of Student-Athlete Consent to Use of Name & Likeness, 20 J. LEGAL 
ASPECTS SPORT 151, 178-80 (2010) (examining the enforceability of the athlete's 
consent form and the cross purposes of the student's alleged amateur status in 
conjunction with the NCAA's commercialization of the use of a student-athlete's name 
and likeness); Bill Cross, Comment & Note, The NCAA as Publicity Enemy Number 
One, 58 U. KAN. L. REV. 1221, 1244 (2010) (concluding that the NCAA has no legal 
right to profit from the use of the name and or likeness of college athlete in commercial 
dealings); Sean Hanlon & Ray Yasser, Comment, "J.J. Morrison" and his Right of 
Publicity Lawsuit Against the NCAA, 15 VlLL. SPORTS & ENT. L.J. 241, 243-44 (2008) 
(arguing that the NCAA's use of the identity of star athletes for commercial advantage 
is unlawful appropriation that violates the student-athlete's right of publicity); Leslie 
E. Wong, Comment, Our Blood, Our Sweat, Their Profit: Ed OBannon Takes on the 
NCAA for Infringing on the Former Student-Athlete's Right of Publicity, 42 TEX. TECH 
L. REV. 1069, 1104-05 (2010) (supporting the establishment of a trust fund for former 
student-athletes with commercially generated revenues). 


against the NCAA this year for the alleged illegal use of their 
images. 132 

Certainly the recruitment of high school athletes is a 
competitive process that does not necessarily center upon what is 
in the best interest of the student-athlete. 133 In fact, issues 
concerning the recruiting of high school athletes have been a focal 
point of controversy over the life of the NCAA. 134 The recruiting of 
high school athletes is crucial for the success of the institution's 
athletic programs, the commensurate financial revenue stream for 
the institution, as well as for the success of the coaching staff, 
both financially and professionally. 135 The amount of revenue 
produced by intercollegiate athletics is substantial 136 and 
accompanied by the benefits of "money and support for the 

132 Nancy Kercheval, Oscar Robertson Among Former College Athletes Suing NCAA, 
Electronic Arts, BLOOMBERG, 
robertson-among-fbrmer-college-athletes-suing-ncaa-electronic-arts.html (last visited 
Nov. 1, 2011). 

133 The NLOI program was initiated "[t]o deter 'school-jumping' by prospective 
student athletes" and was "drafted to protect the school's interests." Johnson, supra 
note 61, at 114. 

134 p or example, one notorious case involved Jerry Tarkanian and his dismissal as 
head coach for UNLV basketball as a result of recruiting violations. See Kadence A. 
Otto & Kristal S. Stippich, Revisiting Tarkanian: The Entwinement and 
Interdependence of the NCAA and State Universities and Colleges 20 Years Later, 18 J. 
LEGAL ASPECTS SPORT 243, 261-63 (2008) (discussing the controversy). Congress held a 
hearing in the 1970s to examine issues with the NCAA's ability to self-regulate 
regarding recruiting violations and other serious infractions. Alice I. Youmans, Joan S. 
Howland & Myra K. Saunders, Regular Features: Questions and Answers, 82 LAW LlBR. 
J. 627, 638-40 (1990). Subsequently, scandals concerning payments to athletes by 
booster groups and alumni led to an investigation and a subsequent restructuring of 
processes and oversight after the Knight Commission Report. Jay Jordan, Reform 
From a Student-Athlete's Perspective: A Move Towards Inclusion, 14 U. MIAMI ENT. & 
SPORTS L. REV. 57, 60-76 (1997) (discussing NCAA structural changes passed and 
implemented in the late 1990s); see also W. Burlette Carter, Student-Athlete Welfare in 
a Restructured NCAA, 2 VA. J. SPORTS & L. 1, 6-38, 95-97 (2000) (discussing the 
restructuring of 1996-1997 and offering additional suggestions for reform). 

135 Jon Perrelle, Note, An Opportunity for Reform: Tennessee Secondary School 
Athletic Association v. Brentwood Academy and NCAA Recruiting, 74 BROOK. L. REV. 
1213, 1251 (2009) (concluding that "recruiting has become a corrupt process that 
exposes high school student-athletes to inappropriate situations, exploits the student- 
athletes, and sacrifices academic success for athletic excellence"). 

136 p or the 2008-2009 academic year, the top ten revenue generating college 
athletic programs earned a combined $1,031,170,136 in revenue and netted a combined 
$117,556,724. Bill King, Life's Lessons, SPORTS BUS. J., 
Depth/Lifes-Lessons.aspx (last visited Nov. 1, 2011). 


university; enthusiasm and cohesion to the university community; 
and enjoyment for the region and entire nation." 137 

Unfortunately, ethical lines are often crossed in pursuit of 
the golden goose. Reports of improper recruiting tactics abound, 
and include the use of drugs, alcohol, sex, monetary enticements, 
grades and test alterations, as well as false representations. 138 
Arguably, "[t]he inherent conflict of interest in the universities' 
bargaining position rebuts the presumption that the schools act in 
good faith, and demonstrates the need for legal protection of the 
weaker party." 139 Tales of coaches inking lucrative endorsement 
contracts in exchange for their players wearing certain athletic 
gear, scandals involving the sale of players by high school coaches, 
stories of alumni and boosters compromising the integrity of 
athletic programs to secure top talent, 140 all lend credence to the 
notion that the recruitment process is a mine field for the unwary, 
unsophisticated recruit. 141 

Some student-athletes have sued concerning 
misrepresentations made during the recruiting process about their 
prospective playing time. 142 Oral misrepresentations made prior 

137 Eric J. Sobocinski, College Athletes: What Is Fair Compensation?, 7 MARQ. 

Sports L.J. 257, 291 (1996). 

«8 Perrelle, supra note 135, at 1234-35. Further, "recruits have chosen schools 
based solely on their dreams of playing professional sports, fake books and magazine 
covers that played on these dreams, their weariness with the recruiting process, and 
even what number they can wear." Id. at 1235. 

139 Johnson, supra note 61, at 123. 

140 See Marc Jenkins, The United Student-Athletes of America: Should College 
Athletes Organize in Order to Protect Their Rights and Address the Ills of 
Intercollegiate Athletics?, 5 VAND. J. ENT. L. & PRAC. 39 (2003) (relating incidents of 
both legitimate and non-legitimate practices). For a discussion of the economics of 
coaches' contracts in big-time college football and basketball, including the dramatic 
increase in coaches' compensation and retention strategies used by universities for 
revenue-generating coaches, see Richard T. Karcher, The Coaching Carousel in Big- 
Time Intercollegiate Athletics: Economic Implications and Legal Considerations, 20 
FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 1, 4-47 (2009). 

141 See Katherine Sulentic, Note & Comment, Running Backs, Recruiting, and 
Remedies: College Football Coaches, Recruits, and the Torts of Negligent and 
Fraudulent Misrepresentation, 14 ROGER WILLIAMS U. L. REV. 127, 132 (2009) 
(asserting that fraudulent and negligent misrepresentation have become part of the 
college football recruiting landscape). 

142 See Timothy Liam Epstein, Splinters from the Bench: Feasibility of Lawsuits by 
Athletes Against Coaches and Schools for Lack of Playing Time, 4 Va. SPORTS & ENT. 
L.J. 174, 186-90 (2005) (discussing disappointment lawsuits and the alleged 
proprietary interest student-athletes have in their athletic reputations); James 


to signing day are particularly susceptible to overreaching during 
the recruitment process when most prospects are inexperienced 
minors negotiating with seasoned university representatives. 143 
"Courts have employed the infancy doctrine to afford greater 
protection to minors, and the NCAA should be obliged to do so as 
well." 144 

Criticism that the process is riddled with corrupt practices 
fuels the concern that minors must be protected from the flurry of 
predatory adults who do not have their best interests at heart — 
the same concern that prompted the judicial development of the 
infancy doctrine under the common law in the first place. Granted, 
a few months of maturity may not remedy the situation for 
individual minors who attain the age of majority in relatively 
short order, but the systemic ignoring of a basic tenet of the legal 
system certainly adds no credence to the recruitment process. The 
less well-reasoned, sometimes irrational, decision-making of 
adolescents counsels against the abrogation of a settled principle 
of the common law with respect to this genre of agreements. 145 

B. Recommendations 

Some commentators recognize that the big business of 
intercollegiate athletics suggests the decline of amateurism in 
college sports. 146 If, as a sixty-billion dollar industry, major college 
sports enterprises indeed are not amateur, and such a 
characterization is demonstrably false, then arguably 

Kennedy Ornstein, Comment, Broken Promises and Broken Dreams: Should We Hold 
College Athletic Programs Accountable for Breaching Representations Made in 
Recruiting Student-Athletes?, 6 SETON HALL J. SPORTS L. 641, 667-68 (1996) 
(condemning the practices of some college recruiters and evaluating potential liability). 

143 Jamie Y. Nomura, Note, Refereeing the Recruiting Game: Applying Contract Law 
to Make the Intercollegiate Recruitment Process Fair, 32 U. HAW. L. REV. 275, 276-77 
(2009) (documenting unfairness in the recruitment process and arguing for reform). 

144 Id. at 288. 

us Perrelle, supra note 135, at 1235. 

146 Because amateurism in college athletics has almost disappeared, some suggest 
taking the next step toward transforming college athletics into a semi-professional 
organization. Leroy D. Clark, New Directions for the Civil Rights Movement: College 
Athletics as a Civil Rights Issue, 36 HOW. L.J. 259, 274-76 (1993); see also Lee 
Goldman, Sports and Antitrust: Should College Students Be Paid to Play?, 65 NOTRE 
DAME L. REV. 206, 206 (1990) (asserting that intercollegiate amateur athletics is really 
a revenue-producing venture). 


intercollegiate athletics should be subject to the application of 
antitrust, tax, and labor laws. 147 Given this realization, several 
observers are in favor of compensating Division I athletes. 148 
Should the historical classification of amateurism of college 
athletics be modified in favor of paying athletes salaries as semi- 
professionals, more state statutes governing minors in the sports 
industry could be applicable to make the NLOI valid, provided the 
state statutory requirements for court approval were followed and 
the statutory definitions reasonably could be read to include 
athletes. 149 

Alternatively, the No-Agency Rule could be abandoned in 
favor of allowing minors to be represented by someone who owes a 
fiduciary duty to act in the best interest of the student-athlete and 
to protect the minor from overreaching by university recruiters 
and coaches. 150 Unfortunately, in reality, this approach likely 
would be available only to assist those athletes whose future 
commercial potential is substantial. It is unlikely that agents 
would scramble to represent the greater number of athletes who 
do not play in Division I's prestigious programs. Thus, such a 
proposal could be only a partial solution in practice. 

Would a statutory exception to the common law that 
establishes the validity of NLOI agreements be feasible? The 
infancy doctrine is an integral part of the common law of 
contracts, which by definition is a matter of state law. 151 To 
change the state common law in this regard would necessitate 
requesting each state legislature to carve a statutory exception to 

147 Amy Christian McCormick & Robert A. McCormick, The Emperor's New Clothes: 
Lifting the NCAA's Veil of Amateurism, 45 SAN DlEGO L. Rev. 495, 498-505 (2008). 

148 Chad W. Pekron, The Professional Student-Athlete: Undermining Amateurism as 
an Antitrust Defense in NCAA Compensation Challenges, 24 HAMLINE L. Rev. 24, 28 
(2000) (claiming that it is unjust for schools to make huge revenues and not share that 
money with the athletes); Riggs, supra note 7, at 141-44 (arguing for the replacement 
of the NCAA's concept of amateurism so that student-athletes can receive a share of 
the profits they generate). 

149 p or a discussion of current state statutes that allow court approval and 
supervision of contracts for the services of child performers, see supra notes 107-23 and 
accompanying text. 

150 See Nomura, supra note 143, at 297-99 (suggesting that the NCAA should 
mandate that high school recruits have an official representative). 

151 "There is no federal general common law . . . ." Erie R.R. Co. v. Thompkins, 304 
U.S. 64, 78 (1938). 


the state's jurisprudence on the infancy doctrine for the NLOI 
agreement — a fairly daunting proposition. While federal 
regulation under the Commerce Clause of intrastate activity is 
permitted when that activity is economic in nature, 152 for 
Congress to pass a law in order to cloak minors across the nation 
with contractual capacity for NLOI agreements seems a rather 
heavy-handed response, and seemingly would necessitate an 
admission that the enterprise is about the economics and not the 
education. Moreover, even if either a uniform state act or a federal 
law could be proposed, for what would it provide? The validity of 
all NLOI agreements? Court approval of NLOI agreements? 
Court-approved representation in the NLOI negotiation? 

Less drastic measures than a legislative response or the 
abandonment of amateurism and the no-agency rule are available. 
The NLOI agreement is voidable until the minor reaches the age 
of majority, which is eighteen years in most states. However, once 
the student-athlete has reached the age of majority and continues 
to participate as a member of the sports team, such conduct 
arguably indicates the intent to be bound by the NLOI; that 
conduct arguably would constitute a ratification of a previously 
voidable agreement, the effect of which would be to make the 
NLOI agreement valid. 153 Rather than rely on conduct 
manifesting the intent to be bound, a wiser course of action would 
be for the institution instead to require the student-athlete to 
ratify the agreement expressly in writing at the age of majority. 
Of course this option leaves the institution vulnerable for the time 
period between signing day and the student-athlete's eighteenth 

While some observers have called for the complete 
elimination of the NLOI agreement, 154 another option is for the 
NCAA to abandon the arbitrary deadlines imposed by the various 
national signing days and permit athletes to sign a binding NLOI 
on their eighteenth birthday. Arguably the elimination of a 

152 United States v. Lopez, 514 U.S. 549, 559-60 (1995). 

153 Ratification consists of words or conduct manifesting an intent to be bound by a 
previously voidable contract. CALAMARI & PERILLO, supra note 5, at § 8.4. 

154 Seth Davis, To Sign or Not to Sign: For Recruits, Letters of Intent Are Not the 
Best Option, SI.COM (Nov. 14, 2007 11:30 AM), 
2007/writers/seth_davis/ll/13/national. letter/ (arguing for a greater voice for 
prospective athletes in the agreement). 


national signing day could help to level the playing field more 
between the university and the athlete, since coaches tend to over- 
sign athletes, many of whom are dismissed before the season 
effectively starts. 155 A uniform day was established for the 
convenience of universities, not the student-athlete, and that 
rationale is insufficient for completely disregarding the common 
law's infancy doctrine. While such a change could result in a more 
chaotic recruiting process for athletic departments, in reality it 
would protect the institution because recruits who are minors 
could walk away from the NLOI agreement without ramification, 
contrary to what it states. 

What of prospective players who will not be eighteen years 
old before the start of practice season? Currently, there is no 
mandatory requirement for a NLOI agreement, so the athlete 
could report and play without having signed one. 156 True, the 
current basic penalty of the loss of one season and a required one 
academic year in residence at the next institution before being 
able to play is unavailable because the agreement is voidable; 157 
however, it would seem that the parent could act as a surety for 
the financial aid offer extended. In other words, since scholarship 
offers are limited, 158 it would seem reasonable for the institution 
to protect its financial position against the minor's disaffirmance 
by allowing liquidated damages equivalent to the financial aid 
irrevocably committed and potentially lost if the minor left the 
institution. 159 Of course, the language used to convey this 

155 Nomura, supra note 143, at 300-01; see also Andy Staples, Eliminate Signing 
Day Entirely, SI.COM (June 6, 2008, 12:20 PM), 
writers/andy_staples/06/05/early.signingday/index.html (calling for the elimination of 
signing day in favor of allowing student-athletes to sign whenever they wish). 

156 About the National Letter of Intent (NLI), NCAA, 
connect/nli/nli+/about+the+nli/index.html (last visited Nov. 1, 2011). 

157 See supra notes 22-24 and accompanying text (discussing the basic penalty). 

us While the number of offers for full-scholarships is limited, there is no rule about 
how many NLOI agreements a school can send to players. Jeremy Crabtree, SEC Sets 
Limits on Player Signings: Will Others Follow'?, RrVALS.COM (June 4, 2009, 3:03 PM), 

159 Arguably, this approach could be utilized for any prospective student- athlete 
who accepted a financial aid offer, not just those recruits who are not yet eighteen 
when practice season begins. Of course, such a provision must protect a real pecuniary 
stake advanced by the institution and not be used as a coercive tactic to force parents 
to force their children to abide by the NLOI agreement. For a discussion of the validity 
of liquidated damages clause, see supra notes 90-91 and accompanying text. 


provision should be clear and unambiguous, in bold print, and 
adequately explained to recruits and their co-signors, with a 
disclosure that a signed agreement is not required in order to 
participate in the institution's athletic program. And while agreed 
upon damages may be recoverable, provided they are reasonable 
and related to the foreseeable harm flowing from a breach, the 
institution could not penalize student-athletes from changing 
schools if they are minors when they sign the NLOI. 

Finally, even if the first-year student-athlete becomes of age 
and signs a binding NLOI agreement, that student typically still 
may be impressionable, unsophisticated, and naive. Many 
student-athletes choose the school for which they will play because 
of the coach, who assumes a somewhat parental position in their 
relationship to the young athlete. Predictably, then, a coaching 
change is one of the major reasons student-athletes seek to be 
released from their signed NLOI agreement. 160 Arguably, the 
inability of the student-athletes to make an informed decision 
about their choice of school in such cases counsels against holding 
them to the agreement, even if they are of age when it is signed. 161 
As a result, the NCAA should also seriously consider permitting a 
limited exception to all valid NLOI agreements and as a matter of 
policy to permit student-athletes, at their discretion, to rescind 
their commitment in the event of a coaching change. This policy 
shift may not be in the best interest of the member schools, but it 
would be in the best interest of the young student-athlete, who in 
good faith accepted the bid in reliance on existing facts concerning 
the coaching staff. 


Thousands of prospective student-athletes sign NLOI 
agreements every year. A great number of these enthusiastic 
recruits are minors and are not bound by the agreement under the 
common law's infancy doctrine. The fact that their parents signed 
in approval has no legal effect other than to mislead the minor 

160 Meyer, supra note 1, at 237-40, 246-47. The NLOI agreement binds the student 
even if there is a coaching change because the NLOI expressly provides that the 
prospective student-athlete signs with an institution, not with a coach. National Letter 
of Intent, supra note 30. 

161 Meyer, supra note 1, at 240. 


into believing in the irrevocability of their commitment. 
Unfortunately, the student-athlete's punishment for breaching the 
voidable agreement is the loss of one season of competition and a 
required one academic year in residence before competing for 
another institution, a penalty enforced by the NLOI's member 
institutions, which otherwise would be sanctioned for permitting 
students to play unless they were released from their NLOI 
agreement. While some state laws recognize the need for child 
performers to enter into valid contracts for services, and permit 
court approval of such contracts, amateur intercollegiate athletes 
are unlikely to be covered by such laws. Given the predatory 
minefield that characterizes college recruiting today, the NCAA 
should recognize the protection afforded minors by the common 
law and abandon its established signing days in favor of allowing 
student-athletes to enter into valid agreements once they have 
reached the age of majority. As it stands, the NCAA is 
perpetuating a charade with its basic penalty provision and 
misleading thousands of recruits into believing they are bound 
once they sign the NLOI agreement, when in fact that agreement 
is voidable during their minority and for a reasonable period of 
time thereafter, provided there has not been an express or implied 
ratification of the agreement. 





Introduction 300 

I. Juvenile Jurisprudence of the Eighth 

Amendment 302 

A. Thompson v. Oklahoma 303 

B. Stanford v. Kentucky 305 

C. Roper v. Simmons 307 

D. Graham v. Florida 310 

II. Why Juveniles are Different 313 

A. Psychological Differences between Adolescents 

and Adults 314 

1. Diminished Capacity for Decision-Making 314 

a. Peer Influence 315 

b. Risk Assessment 315 

c. Future Orientation 316 

d. Impulse Control 316 

2. Relatively Unformed Character 317 

B. Neurological Differences between Adolescents 

and Adults 317 

1. Differences in Brain Structure 318 

2. Differences in Brain Usage 319 

III. Reconsidering Juvenile Life without Parole 320 

A. Society's View of Juvenile Life Without Parole 320 

B. The Court's Independent Judgment 321 

IV. Redefining "Juvenile" 324 

Conclusion 325 




Peter A. was only fifteen years old when his older brother 
instructed him to help an eighteen-year-old steal a van. 1 After 
stealing the van, Peter sat unarmed in the back seat with a 
twenty-one-year-old while the eighteen-year-old drove them to the 
home of the men they were told robbed Peter's brother. 2 Once they 
arrived, Peter remained in the van while the others went into the 
residence. 3 Shortly afterward, Peter heard gunshots, followed by 
one of the young men racing to the van. 4 While the two fled, Peter 
learned that two people were shot to death during the failed 
robbery. 5 

Once arrested, Peter admitted to his role in stealing the van. 6 
He admitted to being present at the scene but asserted that he 
"never shot or killed anyone." 7 In support of his account, no 
physical evidence indicated that Peter entered the victims' home, 
and the prosecution proved at trial that one of his co-defendants 
pulled the trigger. 8 Under mandatory sentencing laws, however, 
Peter will spend the rest of his life behind bars with no possibility 
of re-entering society. 9 

Peter A.'s case illustrates the need to allow juvenile offenders 
an opportunity — not a guarantee — to eventually obtain freedom. 10 
Research shows that significant psychological and neurological 

1 Amnesty Int'l & Human Rights Watch, The Rest of Their Lives: Life 
without Parole for Child Offenders in the United States n (2005), available at 

2 Id. at 11-12. According to Peter, "[N]o one sat in the front passenger's seat 
because 'there was glass on the seat'" from the broken front window. Id. at 12. 

3 Id. at 12. 
* Id. 

5 Id. Peter later found out that one of the victims was a close friend who had no 
role in the original robbery of Peter's brother. Id. 

6 Id. Police questioned Peter for eight hours without the presence of his mother or 
an attorney. Id. 

' Id. 

8 Id. 

9 Id. Due to proof that Peter stole the van driven to the victim's house, he was 
convicted of two counts of felony murder and sentenced to life without parole. Id. 

10 Throughout this article, all references to "juveniles" refer to persons under the 
age of eighteen. 


differences exist between adults and adolescents, 11 which 
demonstrate reduced levels of culpability in juveniles. In Roper v. 
Simmons, the Supreme Court recognized this reduced culpability 
and adopted a categorical rule prohibiting the death penalty for 
defendants who committed crimes before the age of eighteen. 12 

The Court's recent decision in Graham v. Florida extended 
the holding in Roper to exempt juveniles from sentences of life 
without parole for committing crimes short of homicide. 13 In doing 
so, the Court examined the evolving standards of decency in the 
United States, as it did in Roper, and held that the sentence 
violated the cruel and unusual punishment clause of the Eighth 
Amendment. 14 First, the Court looked to the "objective indicia" of 
state legislatures and juries and found that a national consensus 
existed against the practice of issuing life sentences to juvenile 
offenders. 15 Then, the Court applied its own independent 
judgment and found the punishment cruel and unusual due to 
juveniles' reduced culpability and the sentence's lack of 
penological justifications. 16 

The Court's decision marked the first use of its "evolving 
standards of decency" analysis for a non-capital case. 17 Previously, 
this categorical approach was reserved for death penalty cases 
alone, based on the notion that "[d]eath is different." 18 Now, 
however, after Graham, non-capital offenses are subject to 
categorical exemption under the Eighth Amendment. 

11 See, e.g., Elizabeth Cauffman & Laurence Steinberg, (Im)maturity of Judgment 
in Adolescence: Why Adolescents May Be Less Culpable Than Adults, 18 BEHAV. SCI. & 
L. 741, 742-43 (2000); Elizabeth R. Sowell et al, Mapping Continued Brain Growth and 
Gray Matter Density Reduction in Dorsal Frontal Cortex: Inverse Relationships during 
Postadolescent Brain Maturation, 21 J. NEUROSCIENCE 8819, 8819-20 (2001); Laurence 
Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence: Developmental 
Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 AM. 
PSYCHOLOGIST 1009, 1013 (2003); see infra Part III. 

12 543 U.S. 551, 578 (2005). 

13 130 S. Ct. 2011, 2034 (2009). For brevity's sake, throughout this article life 
imprisonment without the opportunity or possibility of parole is referred to as simply 
"life without parole." 

" Id. 

15 Id. at 2023-26. 

16 Id. at 2026-30. 

17 Id. at 2021-23. 

18 Id. at 2046 (Thomas, J., dissenting). 


Applying the reasoning in Graham, this article argues that 
under the evolving standards of decency analysis, sentencing 
juveniles to life without parole — for any crime — violates the 
Eighth Amendment because juveniles are different. As a class, 
juveniles are less culpable than adults. 19 This limited culpability 
should be viewed no differently when applied to homicide than 
when applied to non-homicide offenses. Further, the penological 
justifications of sentencing juveniles to life without parole fail 
because of the unique nature of adolescence. In short, this article 
argues that juveniles are different than adults, and therefore 
deserve an opportunity — not a guarantee — to eventually obtain 
freedom, no matter the crime. 

Part II of this article provides a history of juvenile 
jurisprudence in the context of the Eighth Amendment. Part III 
discusses why juveniles are uniquely different than adults. Part 
IV reconsiders the constitutionality of sentencing juveniles to life 
without parole after Graham u. Florida. Part V then argues for 
the broadening of the traditional definition of "juvenile" and 
presents a possible framework as a solution to the arbitrary 
nature of the current meaning. 

I. Juvenile Jurisprudence of the Eighth Amendment 

When evaluating whether a category of punishment violates 
the Eighth Amendment prohibition against cruel and unusual 
punishment, the Court consults "the evolving standards of decency 
that mark the progress of a maturing society." 20 To determine the 
"evolving standards of decency," the Court employs a two-part 
inquiry. First, the Court reviews the "objective indicia" of relevant 
legislative enactments and sentencing juries to identify a national 
consensus against the mode of punishment at issue. 21 Then, the 
Court applies its own independent judgment to determine whether 
the particular punishment is cruel and unusual. 22 In making that 
judgment, the Court is guided by "the standards elaborated by 

19 Roper v. Simmons, 543 U.S. 551, 569 (2005); see supra note 11 and 
accompanying text. 

2 Trop v. Dulles, 356 U.S. 86, 101 (1958). 

21 Roper, 543 U.S. at 564. 

22 Coker v. Georgia, 433 U.S. 584, 597 (1977). 


controlling precedents and on the Court's own understanding and 
interpretation of the Eighth Amendment's text, history, meaning, 
and purpose." 23 Specifically, the Court examines whether the 
particular punishment is justified by legitimate penological 
goals. 24 

Until the Court's recent decision in Graham, the use of its 
evolving standards of decency analysis was reserved for capital 
crimes alone, based on the notion that "[d]eath is different." 25 
Now, however, non-capital offenses are subject to categorical 
exemption under the Eighth Amendment. The evolution of the 
Supreme Court's application of this standard in juvenile 
jurisprudence is outlined below. 

A. Thompson v. Oklahoma 

The Supreme Court first considered the constitutionality of 
juvenile punishment in the Eighth Amendment context in 1988 
with its decision in Thompson v. Oklahoma. 2 ^ William Wayne 
Thompson committed murder at the age of fifteen. 27 He was tried 
as an adult and sentenced to death, along with three older 
participants in the crime. 28 Thompson appealed his sentence, 
arguing that sentencing a defendant to death who was fifteen 
years old at the time of his offense violated the cruel and unusual 
punishment clause of the Eighth Amendment. 29 

To identify the existence of a national consensus against the 
punishment, the Court first reviewed relevant state legislation. 30 
The Court began by examining various state statutes that define 

23 Kennedy v. Louisiana, 554 U.S. 407 (2008). 

24 Id. at 440-47. 

25 Graham v. Florida. 130 S. Ct. 2011, 2046 (2010) (Thomas, J., dissenting). Justice 
Thomas further declared that "[tjoday's decision eviscerates that distinction. 'Death is 
different' no longer." Id. 

26 487 U.S. 815 (1988) (Stevens, J., plurality). 

27 Id. at 819. Thompson, along with three older participants, shot and stabbed his 
former brother-in-law. Id. The body was found in a river four weeks later chained to a 
concrete block. Id. 

28 Id. at 819-20. The Criminal Court of Appeals of Oklahoma affirmed the 
conviction and sentence. Id. at 820. 

29 Id. at 818-19. 

30 Id. at 823-24. 


"[t]he line between childhood and adulthood." 31 Specifically, the 
Court noted that fifteen-year-olds could not vote or serve on a jury 
in any state, drive without parental consent in all but one state, or 
marry without parental consent in all but four states. 32 The most 
relevant legislation, however, was that all states designated 
sixteen as the maximum age for juvenile court jurisdiction. 33 

Next, the Court surveyed state death penalty legislation. 34 At 
the time, most state legislatures had not expressly established a 
minimum age of eligibility for the death penalty. 35 Of the states 
that had, however, all required that the defendant attain at least 
the age of sixteen at the time of the capital offense. 36 Finally, 
noting the rarity of executions of persons under the age of 
sixteen, 37 the Court came to the "unambiguous conclusion" that 
the imposition of capital punishment on a fifteen-year-old offender 
was "generally abhorrent to the conscience of the community." 38 

The Court then brought its own "judgment to bear" 39 to 
determine whether the punishment was cruel and unusual. In 
making that judgment, the Court first noted the reduced 
culpability of juveniles. 40 It then considered the principal social 

31 Id. at 824. 

32 Id. at 823-24. The Court also noted that in the states that had passed laws on 
the subject, "no one under age 16 may purchase pornographic materials (50 States), 
and in most States that have some form of legalized gambling, minors are not 
permitted to participate without parental consent (42 States)." Id. at 824. 

33 Id. at 824. 

34 Id. at 826-29. In its review of state legislation, the plurality cited many 
industrialized Western nations' limitations on capital punishment — particularly 
juvenile executions. Id. at 830-31. 

35 Id. at 826. Fourteen states did not authorize capital punishment, and nineteen 
others allowed capital punishment, but had not set a minimum age requirement. Id. at 

36 Id. at 829. Eighteen state statutes expressly established a minimum age 
requirement. Id. 

37 Id. at 832. The last execution for a crime committed before age sixteen was in 
1948, forty years prior. Id. 

38 Id. 

39 Coker v. Georgia, 433 U.S. 584, 597 (1977) f[I]n the end our own judgment will 
be brought to bear on the question of the acceptability of the death penalty under the 
Eighth Amendment."). 

40 Thompson, 487 U.S. at 833-35. The Court stated that "[t]he basis for this 
conclusion is too obvious to require extended explanation." Id. at 835. 


purposes of the death penalty: retribution and deterrence. 41 
Because of juveniles' reduced culpability, capacity for growth, and 
"society's fiduciary obligations to its children," the Court found 
that retribution did not justify the execution of a fifteen-year-old 
offender. 42 Further, the Court found that the death penalty did 
not deter persons under the age of sixteen because of their 
reduced capacity for decision-making. 43 Thus, the national 
consensus against the imposition of the death penalty on an 
offender under the age of sixteen, coupled with the lack of 
measurable contribution to the social purposes of capital 
punishment, rendered the imposition of the death penalty on 
offenders under the age of sixteen at the time of the offense 
unconstitutional. 44 

B. Stanford v. Kentucky 

One year after the decision in Thompson, the Supreme Court 
revisited the constitutionality of the juvenile death penalty in 
Stanford v. Kentucky. 45 In Stanford, however, the Court 
considered whether the Eighth Amendment prohibits the 
execution of juveniles over the age of sixteen at the time of the 
offense. 46 The matter before the Court involved the consolidated 
appeals of two juveniles sentenced to death. 47 In the first case, 
seventeen-year-old Kevin Stanford and an accomplice raped and 
sodomized a gas station attendant during the course of a robbery 
and then drove her to a remote area where Stanford shot her to 
death. 48 In the second case, sixteen-year-old Heath Wilkins and 
an accomplice robbed a convenience store. 49 During the robbery, 

41 Id. at 836. 

42 Id. at 836-37. 

43 Id. at 837-38. 

44 Id. at 838. Although Thompson argued for a bright-line rule prohibiting the 
execution of any person who was under the age of eighteen at the time of the offense, 
the Court limited its decision to consider only the imposition of the punishment on 
anyone under sixteen. Id. 

45 492 U.S. 361 (1989). 

46 Id. at 368. It is worth noting that "over the age of sixteen" means on or past an 
offender's sixteenth birthday. 

47 Id. at 364-65. 

48 Id. at 365. 

49 Id. at 366. 


Wilkins stabbed an employee to death as part of a preconceived 
plan. 50 Stanford and Wilkins were tried as adults and sentenced 
to death. 51 On appeal, Stanford argued that the Eighth 
Amendment prohibits the imposition of the death penalty on 
offenders under age eighteen at the time of their crime; Wilkins 
argued under age seventeen was proper. 52 

In an opinion by Justice Scalia, the plurality began its 
analysis by citing two tests to determine whether a particular 
punishment violates the Eighth Amendment. 53 The first test 
considers whether the punishment constitutes one of "those modes 
or acts of punishment . . . considered cruel and unusual at the 
time that the Bill of Rights was adopted." 54 The second test looks 
at the category of punishment and determines whether the 
punishment is "contrary to the 'evolving standards of decency that 
mark the progress of a maturing society."' 55 The Court rejected the 
first test outright since, at the time the Bill of Rights was adopted, 
the common law allowed capital punishment in theory at age 
seven and in practice at age fourteen. 56 

Next, the Court considered whether the punishment was 
contrary to the evolving standards of decency. 57 The plurality 
began its survey of objective evidence of society's view by 
examining state statutes. 58 The Court noted that of the thirty- 
seven states that permitted capital punishment, twenty-two 
allowed it for sixteen-year-old offenders while twenty-five allowed 
it for seventeen-year-old offenders. 59 Based on this information, 
the Court found that no national consensus existed against 

50 id. 

51 Id. at 365-68. 

52 Id. at 368. 

53 Id. at 368-69. 

5" Id. at 368 (quoting Ford v. Wainwright, 477 U.S. 399, 405 (1986)). 
m Id. at 369 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). 
56 Id. at 368. 
5' Id. at 369. 

58 Id. at 370. The majority consisted of the Thompson dissenters (Chief Justice 
Rehnquist, Justice White, and Justice Scalia) along with Justice Kennedy, who did not 
participate in Thompson, and Justice O'Connor, who concurred in part and in the 
judgment. Id. at 364. 

59 Id. at 370. 


executing offenders aged sixteen or seventeen. 60 Further, 
accepting the proposition that the legislation itself did not 
establish a settled consensus, the Court rejected as irrelevant the 
defendants' argument that the actual application of the laws as 
reflected by sentencing juries showed a consensus against the 
punishment. 61 

Then, in Part IV-B of the opinion, which only a minority 
embraced, 62 the Court rejected the argument that, by analogy, 
other minimum age statutes show a national consensus. 63 Lastly, 
in Part V, Justice Scalia "emphatically reject [ed]" the continued 
use of the Supreme Court's own subjective judgment in 
determining whether a particular punishment is cruel and 
unusual. 64 Justice O'Connor, however, rejected Part V of the 
plurality opinion, leaving the Court's independent judgment as a 
valid approach. 65 Accordingly, because of the lack of a national 
consensus, the Court held that the imposition of the death penalty 
on offenders who committed crimes at age sixteen or seventeen 
does not constitute cruel and unusual punishment. 66 

C. Roper v. Simmons 

In Roper v. Simmons, the Court addressed, "for the second 
time in a decade and a half," the issue decided in Stanford: 
whether the Eighth Amendment prohibits the execution of an 
offender who was sixteen or seventeen when he committed a 
capital crime. 67 At age seventeen, Christopher Simmons planned 

60 Id. at 371-72. 

61 Id. at 374. Scalia reasoned that although only two percent of executions involved 
offenders who committed their crime before age eighteen, far fewer capital crimes are 
committed by offenders under the age of eighteen, which accounts for the discrepancy 
in treatment. Id. 

62 Id. Justice O'Connor did not join the plurality in Part IV-B or Part V. Id. at 364. 

63 Id. at 374-77. 

64 Id. at 377-78. Justice Scalia also rejected the use of public opinion polls, the 
views of interest groups, and the positions of professional organizations to show a 
national consensus. Id. at 377. 

65 Id. at 380-82. Justice O'Connor agreed that no national consensus existed 
against the execution of sixteen and seventeen-year-old offenders, but concluded that 
the Court has a constitutional obligation to conduct a proportionality analysis. Id. 

66 Id. at 380. 

67 Roper v. Simmons, 543 U.S. 551, 555-56 (2005). 


and committed murder. 68 Late one evening, Simmons and an 
accomplice broke into the home of the victim and bound her hands 
with duct tape. 69 The two then drove her to a state park and 
threw her off of a bridge where she later drowned. 70 Simmons was 
tried as an adult and sentenced to death. 71 

After a series of rejected appeals, the Supreme Court granted 
certiorari in light of its 2002 decision in Atkins u. Virginia. 12 In 
Atkins, the Court found a national consensus against executing 
mentally retarded criminals, and decided that mental retardation 
reduces moral culpability such that the death penalty is an 
excessive punishment, and therefore prohibited by the Eighth 
Amendment. 73 Using the reasoning in Atkins, Simmons argued 
that the Eighth Amendment forbids the execution of a juvenile 
who was under age eighteen at the time of the offense. 74 

Writing for the majority, Justice Kennedy began his analysis 
by reconsidering "[t]he evidence of national consensus." 75 The fact 
that thirty states rejected the juvenile death penalty outright, 
combined with the infrequency of its use in those states without 
formal prohibition and a trend towards the abolition of the 
juvenile death penalty, led the Court to find that the national 
consensus had changed since Stanford." 76 The Court determined 
that society had evolved, and now viewed juveniles as 
"categorically less culpable than the average criminal." 77 

Then, after identifying a national consensus against the 
sentencing practice, the Court exercised its own independent 
judgment. 78 It cited three general differences between juveniles 

68 Id. at 556. 

69 Id. 

70 Id. at 556-57. 

71 Id. at 557-58. 

72 Id. at 559. 

™ Atkins v. Virginia, 536 U.S. 304, 321 (2002). 

74 Roper. 543 U.S. at 559. 

75 Id. at 564-67. It is important to note that Justice Kennedy joined the majority in 
Stanford. See supra notes 45-61 and accompanying text. 

76 Id. at 564-65. The Court noted that since Stanford, six states had executed 
offenders for crimes committed as juveniles, only three of which had done so in the 
previous ten years. Id. 

77 Id. at 567 (quoting Atkins, 536 U.S. at 316). 

78 Id. at 568-72. 


and adults that "demonstrate that juvenile offenders cannot with 
reliability be classified among the worst offenders." 79 First, 
juveniles have a diminished capacity for decision-making because 
of "[a] lack of maturity and an underdeveloped sense of 
responsibility." 80 Second, juveniles have a heightened 
vulnerability to negative influences and outside pressures, such as 
peer pressure. 81 And third, juveniles have a relatively unformed 
character. 82 Because of their reduced culpability, the Court 
concluded that the social purposes served by the death penalty — 
retribution and deterrence — "apply to [juveniles] with lesser force 
than to adults," and therefore do not provide adequate 
justification for imposing capital punishment on offenders under 
age eighteen. 83 

Lastly, the Court noted that its holding was supported by 
"the stark reality that the United States is the only country in the 
world that continues to give official sanction to the juvenile death 
penalty." 84 In particular, the majority pointed to the fact that only 
the United States and Somalia had not ratified Article 37 of the 
United Nations Convention on the Rights of the Child, which 
expressly prohibits capital punishment for offenders under age 
eighteen. 85 Thus, the Court's own independent evaluation 
confirmed society's view that the death penalty is an 
unconstitutionally disproportionate punishment when applied to 
offenders under age eighteen. 86 Accordingly, by a 5-4 majority, the 
Court overruled Stanford and held that the Eighth Amendment 

79 Id. at 569. 

80 Id. (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)). 

81 Id. (citing Eddings v. Oklahoma, 455 U.S. 104, 115 (1982)). 

82 Id. at 570. 

83 Id. at 571-72. Following the logic of Thompson, the Court determined that age 
eighteen was "the point where society draws the line for many purposes between 
childhood and adulthood," and therefore was the "age at which the line for death 
eligibility ought to rest." Id. at 574. 

84 Id. at 575. 

85 Id. at 576. In citing international opinion, however, the Court made it clear that 
the position of the international community was not controlling, rather it provided 
"respected and significant confirmation" for the Court's own conclusions and was 
instructive on the interpretation of the cruel and unusual punishment clause of the 
Eighth Amendment. Id. at 575, 578. 

86 Id. at 568-72. 


"forbid [s] [the] imposition of the death penalty on offenders who 
were under the age of 18 when their crimes were committed." 87 

D. Graham v. Florida 

In the 2010 case of Graham v. Florida, the Supreme Court 
considered whether the Constitution permits sentencing juveniles 
convicted of non-homicide offenses to life without parole. 88 At age 
sixteen, Terrance Graham was convicted of armed burglary and 
attempted armed robbery. 89 Graham and three other youths 
attempted to rob a restaurant but fled after Graham's accomplice 
assaulted the restaurant manager. 90 Under a plea agreement, 
Graham received probation. 91 A month short of his eighteenth 
birthday, Graham violated the terms of his probation by 
committing additional crimes. 92 Against the recommendation of 
the prosecution, the trial judge sentenced Graham to life without 
parole for the initial armed burglary. 93 On appeal, Graham argued 
that his sentence was unconstitutionally disproportionate to his 
crimes and that categorically, the Eighth Amendment prohibits 
sentences of life without parole imposed on juveniles convicted of 
non-homicide offenses. 94 

The issue before the Court, then, fell between two categories 
of cases: cases involving as-applied challenges to sentence length 
(i.e., non-capital cases), and cases involving categorical challenges 
to the application of the Eighth Amendment to an entire class of 
offenders (i.e., capital cases). 95 Writing for the Court, Justice 
Kennedy found Graham to fall under the latter category because 
it "implicate [d] a particular type of sentence as it applies to an 
entire class of offenders who have committed a range of crimes," 

87 Id. at 578. 

88 130 S. Ct. 2011 (2010). 

89 Id. at 2018. 

90 Id. The accomplice struck the restaurant manager in the head with a metal bar, 
requiring stitches for the manager's injury. Id. 

91 Id. 

92 Id. at 2019. 

93 Id. at 2019-20. The prosecution recommended a sentence of thirty years for the 
armed burglary and fifteen years for the attempted armed robbery. Id. at 2019. 

94 Id. at 2020. 

95 Id. at 2021. 


and therefore, reasoned Kennedy, "a threshold comparison 
between the severity of the penalty and the gravity of the crime 
does not advance the analysis." 96 

The Court began its application of the evolving standards of 
decency analysis by examining the objective indicia of national 
consensus. 97 First, the Court looked to the legislative evidence. 98 
Six states prohibited juvenile life-without-parole sentences for any 
offense, 99 seven prohibited juvenile life without parole sentences 
for non-homicide offenses, 100 and thirty-seven states including the 
District of Columbia permitted the punishment for non-homicide 
offenses. 101 While the prosecution argued that this metric proved 
a national consensus did not exist against the punishment in 
question, the Court disagreed. 102 It reasoned: 

There are measures of consensus other than legislation. 
Actual sentencing practices are an important part of the 
Court's inquiry into consensus. Here, an examination of 
actual sentencing practices in jurisdictions where the 
sentence in question is permitted by statute discloses a 
consensus against its use. Although these statutory schemes 
contain no explicit prohibition on sentences of life without 
parole for juvenile nonhomicide offenders, those sentences are 
most infrequent. 103 

Thus, the Court concluded that, because of the rarity of juveniles 
with convictions for non-homicide offenses receiving sentences of 
life without parole, "it is fair to say that a national consensus has 
developed against it." 104 

96 Id. at 2022-23. 

97 Id. at 2023. 

98 Id. 

99 These states are: Alaska, Colorado, Kansas, Kentucky, Montana, and Texas. Id. 
at 2035. 

100 These states include: Connecticut, Hawaii, Maine, Massachusetts, New Jersey, 
New Mexico, and Vermont. Id. 

101 Id. at 2023. The Court also noted that the federal government permitted the 
punishment in question. Id. 

102 Id. 

103 Id. (quoting Kennedy v. Louisiana, 554 U.S. 407, 433 (2008)). 

104 Id. at 2026 (quoting Atkins v. Virginia, 536 U.S. 304, 316 (2002)). 


After finding a national consensus, the Court exercised its 
own independent judgment to determine if the punishment was 
unconstitutional. 105 First, the Court considered whether life 
without parole sentences are justified in light of the culpability of 
juveniles convicted of non-homicide crimes. 106 Citing Roper, the 
majority concluded that juveniles are categorically "less deserving 
of the most severe punishments" due to their reduced 
culpability." 107 The Court reasoned that, "developments in 
psychology and brain science continue to show fundamental 
differences between juvenile and adult minds," and therefore 
there was no need to reconsider the Court's observations in Roper 
concerning the unique nature of juveniles. 108 Next, the majority 
noted that categorically, non-homicide offenders are less deserving 
of the most severe modes of punishment than are murderers, to 
conclude, "when compared to an adult murderer, a juvenile 
offender who did not kill or intend to kill has a twice diminished 
moral culpability." 109 Lastly, turning to the nature of the 
punishment, the Court pointed out the harshness of a life without 
parole sentence on a juvenile due to the actual length of time 
spent imprisoned. 110 

The Court also considered the penological justifications of 
juvenile life without parole sentences — retribution, deterrence, 
incapacitation, and rehabilitation. 111 In the Court's eyes, 
retribution was not justified because invoking the "second most 
severe penalty on the less culpable juvenile nonhomicide offender" 
is not proportionate. 112 In light of juveniles' lack of maturity and 
diminished sense of responsibility, deterrence did not suffice to 
justify the sentence either. 113 Further, the Court found 
incapacitation unjustifiable due to the challenging and speculative 

105 Id. 

106 Id. 

107 Id. (citing Roper v. Simmons, 543 U.S. 551, 569 (2005)). 

108 Id. 

109 Id. at 2027. 

110 Id. at 2027-28. 

111 Id. at 2028-29. 

112 Id. at 2028. 

113 Id. at 2028-29. 


nature of making a judgment that a juvenile is incorrigible. 114 
Lastly, the Court found the very nature of life without parole 
forswears the possibility of rehabilitation. 115 Accordingly, 
"[b]ecause '[t]he age of 18 is the point where society draws the line 
for many purposes between childhood and adulthood,'" the Court 
held that "those who were below that age when the offense was 
committed may not be sentenced to life without parole for a 
nonhomicide crime." 116 

The Court's decision marked the first use of its "evolving 
standards of decency" analysis for a non-capital case. 117 
Previously, this categorical approach was reserved for death 
penalty cases alone, based on the notion that "[d]eath is 
different." 118 Now, however, non-capital offenses are subject to 
categorical exemption under the Eighth Amendment. The 
remainder of this article argues, then, that under the evolving 
standards of decency analysis, sentencing juveniles to life without 
parole — for any crime — violates the Eighth Amendment because 
juveniles are different. 

II. Why Juveniles are Different 

The Court's decision in Graham confirms the generally 
recognized notion that juveniles differ from adults in many 
distinguishable ways. In the legal context, the salient distinctions 
relate to a lack of maturity and decision-making ability formed 
during adolescence. Research suggests that these distinctions are 
explained by psychological and neurological differences between 
adults and adolescents. 119 These developmental differences, as 
outlined below, reduce the criminal culpability of juvenile 
offenders and make them, as a class, inherently "different" than 

114 Id. at 2029. 

115 Id. at 2029-30. 

116 Id. at 2030 (quoting Roper v. Simmons, 543 U.S. 551, 574 (2005)). 

117 Id. at 2022-23. 

118 Id. at 2046 (Thomas, J., dissenting). Justice Thomas further declared that 
"[tjoday's decision eviscerates that distinction. 'Death is different' no longer." Id. 

119 See supra note 11. 


A. Psychological Differences between Adolescents and Adults 

According to research in developmental psychology, 
adolescent involvement in criminal activity may be attributable to 
two forms of immaturity: cognitive and psychosocial. 120 Cognitive 
development refers to adolescents' ability to process information 
and use reasoning to make informed decisions, while psychosocial 
development concerns adolescents' judgment based on social and 
emotional factors that influence decision-making. 121 Both 
psychological capacities are required for sound judgment; 
however, they develop at different rates. Generally, cognitive 
control capacities increase linearly from childhood to adulthood, 
but begin to plateau at age sixteen. 122 Psychosocial maturity, 
however, continues to develop throughout adolescence. 123 
Therefore, even in late adolescence, when teenagers' cognitive 
capacities may rival those of adults, psychosocial factors influence 
their decision-making differently than adults, thus affecting 
determinations of culpability. 124 

1. Diminished Capacity for Decision-Making 

Among the psychosocial factors that influence decision- 
making and judgment, (1) peer influence, (2) risk assessment, (3) 
future orientation, and (4) impulse control, are particularly 

120 See Elizabeth S. Scott & Thomas Grisso, The Evolution of Adolescence: A 
Developmental Perspective on Juvenile Justice Reform, 88 J. CRIM. L. & CRIMINOLOGY 
137, 156-57 (1997); Cauffman & Steinberg, supra note 11, at 742-43; Steinberg & Scott, 
supra note 11, at 1011-12. 

121 See Scott & Grisso, supra note 120, at 157. 

122 See, e.g., Thomas Grisso et al., Juveniles' Competence to Stand Trial: A 
Comparison of Adolescents' and Adults' Capacities as Trial Defendants, 27 L. & HUM. 
BEHAV. 333, 343-44 (2003) (sixteen and seventeen-year-olds performed significantly 
better than fourteen and fifteen-year-olds on a test of fundamental cognitive capacities, 
but performed equally with eighteen to twenty-four-year-olds); Daniel P. Keating, 
Cognitive and Brain Development, in HANDBOOK OF ADOLESCENT PSYCHOLOGY 45, 64 
(Richard M. Lerner & Laurence D. Steinberg eds., 2004) (cognitive abilities increased 
rapidly until approaching the limits of growth at the fourteen to sixteen age range); see 
also Leah H. Somerville & B.J. Casey, Developmental Neurobiology of Cognitive 
Control and Motivational Systems, 20 CURRENT OPINION NEUROBIOLOGY 236, 237 
(2010) (describing growth of cognitive capacity as a linear function). 

123 See Cauffman & Steinberg, supra note 11, at 743-44. 

124 See Steinberg & Scott, supra note 11, at 1012. 


important to determinations of criminal culpability in 
adolescents. 125 

a. Peer Influence 

First, research — and the Court — confirms the conventional 
wisdom that teens are generally more susceptible than adults to 
peer influence. 126 Peer influence on adolescents' judgment 
operates both directly and indirectly. 127 In some contexts, 
adolescents might make decisions because they are directly 
coerced into taking risks they normally would avoid. 128 More 
indirectly, adolescents might make decisions based on their desire 
for peer approval (or the converse fear of peer rejection), even 
without any direct coercion. 129 Thus, adolescents have a 
heightened vulnerability to coercive circumstances, making them 
more likely than adults to alter their behavior in response to peer 

b. Risk Assessment 

Second, adolescents and adults differ in their evaluation of, 
and attitude toward, risk. 130 Adolescents are more likely than 
adults to participate in risky behavior because adolescents 
generally place a higher value on reward in relation to risk than 
adults. 131 Research suggests that this relatively weaker risk 
aversion is due to adolescents' overvaluation of the potential 
reward of risky behavior, not because adolescents are less able 
than adults to appreciate risk. 132 Therefore, adolescents are more 

125 Id. 

126 Roper v. Simmons, 543 U.S. 551, 569 (2005) ("[J]uveniles are more vulnerable . . 
. to negative influences and outside pressures, including peer pressure."); see Steinberg 
& Scott, supra note 11, at 1012. 

127 See Steinberg & Scott, supra note 11, at 1012. 

128 Elizabeth S. Scott & Laurence Steinberg, Rethinking Juvenile Justice 

38-39 (2008). 

129 Id. 

130 See Steinberg & Scott, supra note 11, at 1012. 

131 Id. 

132 See Laurence Steinberg, Adolescent Development and Juvenile Justice, 5 ANN. 
REV. CLINICAL PSYCHOL. 459, 469 (2009); Steinberg & Scott, supra note 11, at 1012. 


likely than adults to engage in risky behavior, including criminal 

c. Future Orientation 

Third, adolescents are less future-oriented than adults 
because of a difference in temporal perspective. 133 Adolescents 
focus more on short-term consequences than adults, which could 
lead to rash decisions and risky behavior. 134 This tendency may be 
attributable to adolescents' lack of cognitive capacity to envision 
the future in hypothetical terms, or their lack of life 
experiences. 135 In either case, adolescents' diminished ability to 
foresee and consider the future consequences of their behavior 
makes them different than adults. 

d. Impulse Control 

Fourth, adolescents are less able to control their impulses 
than adults. 136 Impulse control refers to the ability to allow goal- 
directed emotions and actions to supersede goal-inappropriate 
ones. 137 This ability is limited in adolescents. They lack the self- 
restraint necessary to achieve adult levels of reasoning and 
consistent exercise of good judgment. 138 In fact, research suggests 
that the ability to control impulses does not fully form until 
approximately age thirty. 139 This inability to control impulses 
makes adolescents more likely than adults to react on reflex 
rather than sound judgment. 

133 See Steinberg & Scott, supra note 11, at 1012. 

134 Id. 

13 5 Id. 

136 See Steinberg, supra note 132, at 470; see also Steinberg & Scott, supra note 11, 
at 1012-13. 

137 Beatrice Luna, The Maturation of Cognitive Control and the Adolescent Brain, in 
From Attention to Goal-Directed Behavior 251 (Francisco Aboitiz & Diego 
Cosmelli eds., Springer Berlin Heidelberg 2009). 

138 See id.; Steinberg, supra note 132, at 470. 

139 Laurence Steinberg et al., Age Differences in Sensation Seeking and Impulsivity 
as Indexed by Behavior and Self-Report: Evidence of a Dual Systems Model, 44 
DEVELOPMENTAL PSYCHOL. 1764, 1774-76 (2008); see Steinberg & Scott, supra note 11, 
at 1012-13; Steinberg, supra note 132, at 469. 


2. Relatively Unformed Character 

In addition to juveniles' diminished capacity for decision- 
making, they also differ from adults because they have relatively 
unformed characters. 140 The process of developing one's character 
to form a personal identity is not complete until at least early 
adulthood. 141 This process often involves experimentation with 
risky, dangerous, and even criminal activities. 142 Therefore, 
criminal acts committed during this transient period often reflect 
characteristics of adolescence rather than an indication of "bad" 
character. 143 These characteristics, however, usually subside once 
a personal identity is fully formed. 144 Given this, it seems 
presumptuous to conclude that a juvenile will persist in criminal 
behavior beyond adolescence. 

B. Neurological Differences between Adolescents and Adults 

Emerging neurological research establishes a biological basis 
for the observed psychological differences between adult and 
adolescent behavior. In regard to decision-making, the adolescent 
brain differs from the adult brain in two respects. First, 
adolescent brains are not as structurally developed as adult brains 
in areas responsible for behavior control. 145 Second, in making 
decisions, adolescents rely more heavily than adults on regions of 

140 Steinberg & Scott, supra note 11, at 1014. 

141 See SCOTT & STEINBERG, supra note 128, at 52 (observing that the final stages of 
the process of forming a personal identity occur during the time spent in college); 
Steinberg & Scott, supra note 11, at 1014 (discussing the notion that the resolution of 
identity crisis does not occur until late adolescence or early adulthood (citing Alan S. 
Waterman, Identity Development from Adolescence to Adulthood: An Extension of 
Theory and a Review of Research, 18 DEVELOPMENTAL PSYCHOL. 341, 355 (1982))). 

142 See Steinberg & Scott, supra note 11, at 1014. 

143 Id. at 1015. 

144 Id. 

145 See B.J. Casey et al., The Adolescent Brain, 28 DEVELOPMENTAL REV. 62, 62-77 
(2008); Laurence Steinberg et al., Are Adolescents Less Mature than Adults? Minors' 
Access to Abortion, the Juvenile Death Penalty, and the Alleged APA "Flip Flop, " 64 AM. 
PSYCHOLOGIST 583, 592 (2009); see also Sarah Durston & B.J. Casey, Wliat Have We 
Learned About Cognitive Development from Neuroimaging? , 44 NEUROPSYCHOLOGY 
2149, 2150 (2006). 


the brain associated with impulsive, risky, and sensation-seeking 
behavior. 146 These complementary differences are outlined below. 

1. Differences in Brain Structure 

Since the late 1990s, magnetic resonance imaging ("MRI") 
has allowed scientists to better understand adolescent brain 
development. Using this technology, scientific research shows that 
the brain's prefrontal cortex is "one of the last brain regions to 
mature," continuing to develop beyond adolescence. 147 The 
prefrontal cortex is part of the cognitive control system, and is the 
area within the frontal lobes of the brain associated with 
"response inhibition, emotional regulation, planning and 
organization." 148 In short, it is the portion of the brain responsible 
for rational decision-making. 

Adolescents' prefrontal cortex is structurally immature in two 
ways that affect brain functioning. First, the process of pruning is 
incomplete. "Pruning" refers to the process of trimming excess 
brain tissue, called gray matter, from the outer surfaces of the 
brain. 149 This process strengthens the brain's ability to process 
information, reason, and make informed decisions. 150 And second, 
the process of myelination is incomplete. Myelination is the 
process by which neural pathways used to carry information are 

146 See Amy L. Krain et al., An fMRI Examination of Developmental Differences in 
the Neural Correlates of Uncertainty and Decision-Making, 47 J. CHILD PSYCHOL. & 
PSYCHIATRY 1023, 1023-24 (2006); see also Adriana Galvan et al., Earlier Development 
of the Accum bens Relative to Orbitofrontal Cortex Might Underlie Risk-Taking Behavior 
in Adolescents, 26 J. NEUROSCIENCE 6885 (2006); Todd A. Hare et al, Biological 
Substrates of Emotional Reactivity and Regulation in Adolescence During an Emotional 
Go-Nogo Task, 63 BIOLOGICAL PSYCHIATRY 927 (2008). 

147 B.J. Casey et al., Structural and Functional Brain Development and its Relation 
to Cognitive Development, 54 BIOLOGICAL PSYCHOL. 241, 243 (2000); see Jay N. Giedd 
et al., Brain Development During Childhood and Adolescence: A Longitudinal MRI 
Study, 2 NATURE NEUROSCIENCE 861 (1999); see also Nitin Gogtay et al., Dynamic 
Mapping of Human Cortical Development During Childhood Tlirough Early Adulthood, 
101 PROC. NAT'L ACAD. SCI. 8174, 8177 (2004); Sowell et al, supra note 11, at 8826. 

148 Elizabeth R. Sowell et al., In Vivo Evidence for Post-Adolescent Brain Maturation 
in Frontal and Striatal Regions, 2 NATURE NEUROSCIENCE 859, 860 (1999). 

149 See Casey et al., supra note 147, at 244-46. 

150 Id. at 241. 


coated with a white insulating substance called myelin. 151 This 
insulating process improves the reliability and speed of 
communication between different sections of the brain, which 
affects the processing of emotions. 152 

Together, pruning and myelination increase the brain's 
efficiency, thus improving impulse control and risk evaluation. 153 
These processes continue to alter the composition of the brain 
throughout adolescence in the prefrontal cortex — the area of the 
brain responsible for rational decision-making. 154 Thus, as 
compared to adult brains, adolescent brains are structurally 
immature in the regions of the brain crucial to determinations of 

2. Differences in Brain Usage 

The socioemotional system, which is in the limbic and 
paralimbic sections of the brain, drives risky and impulsive 
behavior. 155 Because of the structural immaturity of the cognitive 
control system, adolescent brains rely more heavily on the earlier- 
developing socioemotional system to make decisions. The main 
area affected by the system's early development is the amygdala. 
The amygdala is "a neural system that . . . detect [s] danger and 
produce [s] rapid protective responses without conscious 
participation." 156 In other words, it processes emotions. The 
prefrontal cortex regulates the activity in the amygdala, 157 and 
since adolescents' prefrontal cortex is structurally immature, as 
discussed above, it has less control over the amygdala, thus less 

151 see elkhonon goldberg, the executive brain: frontal lobes and the 
Civilized Mind 144 (2001). 

J 52 id. 

153 See Sowell et al., supra note 11, at 8828. 

154 In fact, research indicates that myelination of the prefrontal cortex continues to 
occur into early adulthood. See Giedd et al., supra note 147, at 861-62. 

155 See Steinberg, supra note 132, at 466. 

156 Abigail A. Baird et al., Functional Magnetic Resonance Imaging of Facial Affect 
Recognition in Children and Adolescents, 38 J. AM. ACAD. CHILD ADOLESCENT 

Psychiatry l (1999). 

157 See Mario Beauregard et al., Neural Correlates of Conscious Self-Regulation of 
Emotion, 21 J. NEUROSCIENCE RC165 (2001). 


influence over emotions. 158 As a result, adolescents rely more on 
the amygdala than the prefrontal cortex to make decisions. 159 
Stated differently, adolescents rely more heavily on emotions than 
adults when making decisions. 

III. Reconsidering Juvenile Life without Parole 

With its decision in Graham v. Florida, the Supreme Court 
adopted a categorical rule prohibiting life without parole 
sentences for defendants who committed non-homicide crimes 
before the age of eighteen. 160 In doing so, the Court examined the 
evolving standards of decency in the United States and held that 
the sentence violated the cruel and unusual punishment clause of 
the Eighth Amendment. 161 This Part argues that the reasoning 
used to reach that conclusion should also prohibit sentencing 
juveniles to life without parole for any crime. 

A. Society's View of Juvenile Life Without Parole 

When the Supreme Court decided Graham, thirty-seven 
states permitted juvenile life without parole sentences for non- 
homicide offenses. 162 In Graham, the prosecution argued that 
since the overwhelming majority of jurisdictions allowed the 
sentencing practice, there was no national consensus against its 
use. 163 The Court, however, relied almost entirely on the rarity of 
the actual imposition of the sentence to find that a consensus had 
developed against it. 164 Given this, the Court could find a national 
consensus against all juvenile life without parole sentences by 
taking such sentencing practices into consideration. 

158 See Neir Eshel et al., Neural Substrates of Choice Selection in Adults and 
Adolescents: Development of the Ventrolateral Prefrontal and Anterior Cingulate 
Cortices, 45 NEUROPSYCHOLOGY 1270, 1270-71 (2007). 

159 See Mary Beckman, Crime, Culpability, and the Adolescent Brain, 305 SCI. 596, 
599 (2004). 

160 130 S. Ct. 2011 (2010). 

161 Id. at 2034. 

162 See supra note 101 and accompanying text. 

163 See supra note 102 and accompanying text. 

164 See supra notes 103-04 and accompanying text. 


Currently, forty-four states permit sentencing juveniles to life 
without parole for homicide offenses. 165 While this is an 
overwhelming majority of states, an examination of the actual 
imposition of the sentence sheds more light on the national 
consensus. Research indicates that there were approximately 
39,694 homicides committed in the United States from 1980 to 
2004 by offenders who were below the age of eighteen at the time 
of the crime. 166 Of the 39,694 juveniles, approximately 1,642 
received sentences of life without parole — roughly 4.1 percent. 167 
While this percentage indicates that sentencing juveniles to life 
without parole for homicide offenses is not as rare as the 
sentencing practice in question was in Graham, 168 it still reflects 
the nation's relative distaste for its imposition, and provides the 
Court with an opportunity to recognize a national consensus 
against its use. 

B. The Court's Independent Judgment 

Even if the Supreme Court does not find enough evidence to 
recognize a national consensus against sentencing juveniles to life 
without parole for homicide offenses, it could still find the 
sentence unconstitutional based on its own independent judgment. 
To make that judgment, the Court weighs the culpability of the 
class of offenders, the penological justifications of the sentencing 
practice, and the customs of the international community. 169 

In Graham, the Court recognized that juveniles, as a class, 
are less culpable than adults because of the psychological and 
neurological differences that exist between them. 170 When 

165 See supra note 101 and accompanying text. 

166 See C. Puzzanchera & W. Kang, Easy Access to the FBI's Supplementary 
Homicide Reports: 1980-2006, (last visited Nov. 1, 
2011) (using data from the Federal Bureau of Investigation, Supplementary Homicide 
Reports 1980-2008 [machine-readable data files]). 

167 See Amnesty Int'l & Human Rights Watch, supra note l, at 41-42 (compiling 

the number of juveniles entering sentences of life without parole from 1980 to 2004). 

168 See Graham v. Florida, 130 S. Ct. 2011, 2024-25 (2010) (comparing the number 
of juvenile offenders sentenced to life without parole for non-homicide offenses with 
statistics from 2007 of certain types of offenses). 

169 See Thompson v. Oklahoma, 487 U.S. 815, 833 (1988). 

170 Graham, 130 S. Ct. at 2026. 


invoking its own independent judgment, the Court should view 
this diminished culpability no differently when applied to 
homicide than when applied to non-homicide offenses because 
adolescents are developmentally immature in both circumstances. 
A child who commits murder is just as psychologically and 
neurologically ill-equipped to make decisions as a child who 
commits armed robbery. Additionally, "[l]ife without parole is an 
especially harsh punishment for a juvenile." 171 It is essentially "a 
death sentence without an execution date." 172 The severity of this 
punishment — one that is like a death sentence in many ways — 
combined with the diminished culpability of juveniles, should 
influence the Court to prohibit juvenile life without parole. 173 

The reduced culpability of juveniles also affects the 
penological purposes served by juvenile life without parole: 
retribution, deterrence, incapacitation, and rehabilitation. 174 
Sentencing juveniles to life without parole is not justified because 
it does not further these goals. 

First, sentencing juveniles to life without parole serves no 
valid retribution goals. Juveniles are less culpable and therefore 
less blameworthy than adults. 175 While they can cause harm just 
as adults can, they cannot bear the same responsibility. Also, 
society's entitlement to inflict harm on juvenile offenders in return 
for the harm inflicted on society can be met by sentencing 
juveniles to life imprisonment with the possibility — not the 
guarantee — of parole. Life imprisonment expresses society's 
condemnation of the crime and attempts to right the wrong to the 
victim just as life without parole does. The two only differ in that 
life without parole forecloses the opportunity to re-enter society. 
Thus, retribution fails as a justification for juvenile life without 
parole since a lesser punishment adequately serves its goal. 

Second, juvenile life without parole does not further the 
penological goal of deterrence. By definition, deterrence relies on 

«i Id. at 2028. 

172 William W. Berry III, More Different than Life, Less Different than Death, 71 
Ohio St. L.J. 1109, 1112 (2010). 
"3 Id. 

174 See supra note 111 and accompanying text. 

175 See supra Part III. 


the assumption that the offender is a rational calculator of the 
risk in relation to the reward of crime. As discussed above, 
adolescents inherently place more value than adults on reward in 
relation to risk. 176 This insufficiency makes suspect the deterrent 
value of life without parole as a punishment for juvenile offenders. 
Further, the strong possibility that only a marginal deterrent 
value is gained from sentencing juveniles to life without parole 
rather than life imprisonment supports the conclusion that 
deterrence fails here as a valid penological purpose. 177 In fact, the 
argument can be made that allowing juveniles the possibility of 
parole better serves the goal of specific deterrence because it 
allows them the possibility to be rehabilitated during 
imprisonment, which could deter them from a crime-ridden future. 

Third, incapacitation fails as a legitimate penological goal of 
juvenile life without parole because it requires a judgment at the 
outset that an offender "never will be fit to reenter society" at an 
age where the defendant is not yet fully developed. 178 This one- 
time assessment is, at best, speculative. Because of the "transient 
immaturity" of juveniles, 179 there is a possibility that a juvenile 
offender may, at some point, no longer be dangerous to society. 
Thus, sentencing juveniles to life without parole is not justified by 
the goal of incapacitation. 

Fourth, the goal of rehabilitation does not justify sentencing 
juveniles to life without parole. The sentence of life without 
parole, by definition, forecloses any possibility of rehabilitation. A 
sentence of life imprisonment, however, allows the possibility of 
rehabilitation while still serving the goal of incapacitation since 
the offender is not guaranteed eventual freedom. 

The Court should also consider the global consensus against 
juvenile life without parole when making its independent 
judgment. The vast majority of the developed countries forbid 
imposing sentences of life without parole on juvenile offenders for 

176 See supra Part III. A. l.b. 

177 See Berry, supra note 172, at 1134-35. 

178 Graham v. Florida, 130 S. Ct. 2011, 2030 (2010). 

179 Id. at 2029 (quoting Roper v. Simmons, 543 U.S. 551, 572 (2005)). 


any crime. 180 While this fact is not controlling, 181 it should confirm 
the Court's judgment that juvenile life without parole is a cruel 
and unusual punishment. 

IV. Redefining "Juvenile" 

As discussed above, adolescents differ from adults in many 
significant psychological and neurological ways. 182 They are more 
susceptible to peer influence, they place more value on reward in 
relation to risk, they are less future-oriented, they are less able to 
control their impulses, and they have relatively unformed 
characters. 183 Further, adolescents have structurally immature 
brains and rely more heavily than adults on regions of the brain 
associated with risky behavior. 184 These developmental 
differences reduce the criminal culpability of offenders who 
committed their crimes during adolescence — a developmental 
phase that varies in length among individuals. The Court, 
however, in the Eighth Amendment context, categorically limits 
this reduced culpability to offenders under age eighteen, which 
fails to mirror the transition to adulthood of many individuals. 
This arbitrary "age of majority" is too simplistic to determine if an 
individual is an adolescent or an adult for the purpose of receiving 
a sentence of death or life without parole. The use of a bright-line 
rule to define the end of adolescence distorts developmental 
reality by failing to consider variations in maturity, and is thus 
inadequate to assess culpability. After all, as the Supreme Court 
recognized, "youth is more than a chronological fact. It is a time 
and condition of life when a person may be most susceptible to 
influence and to psychological damage." 185 

This article proposes, then, a framework that more 
adequately mirrors the transitory nature of adolescence. Offenders 
who commit crimes before age eighteen are viewed as categorically 

180 Id. at 2033 ("[0]nly 11 nations authorize life without parole for juvenile 
offenders under any circumstances . . . ."). 

181 See id. at 2034. 

182 See supra Part III. 

183 See supra Part III.A. 

184 See supra Part III. B. 

18 5 Eddings v. Oklahoma, 455 U.S. 104, 115 (1982). 


less culpable than offenders over age eighteen. 186 This bright-line 
rule recognizes the inherent differences in development between 
adolescents and adults, but fails to account for those who 
psychologically or neurologically develop beyond age eighteen. A 
rule extending the arbitrary end date of adolescence would 
capture these outliers, as well as more accurately determine true 
culpability. Accordingly, this article advances a juvenile 
framework that supports a rebuttable presumption that an 
offender who commits a crime after their eighteenth birthday, but 
before their twenty-first, is less culpable than offenders over age 
twenty-one. This framework would allow the prosecution an 
opportunity to prove that an individual is developmentally 
mature, while safeguarding offenders who have not fully 
completed adolescence. 


This article advocates for the abolishment of juvenile life 
without parole. After outlining the juvenile jurisprudence in the 
context of the Eighth Amendment, the article describes what 
makes juveniles inherently different than adults. Next, the article 
discusses how the Court could find juvenile life without parole 
cruel and unusual under the evolving standards of decency 
analysis. Lastly, this article proposes a basic framework for 
broadening the current meaning of "juvenile" to more adequately 
mirror the transitory nature of adolescence. 

Michael Barbee 

186 See supra Part I.D. 








Introduction 327 

I. The Modern Doctrine 329 

II. History and Tradition 336 

A. The Congressional Debates Surrounding 

the Civil Rights Act of 1875 337 

B. Older Courts & Public Accommodation 

Laws 347 

III. A New Approach from the Historical 

Tradition 358 

Conclusion 361 


With the Supreme Court's recent decision in Christian Legal 
Society Chapter of the University of California, Hastings College of 
the Law v. Martinez, 1 the constitutional boundaries of 
associational freedom are as relevant as ever. Modern freedom of 
association doctrine hinges upon the level to which entities are 
intimate or expressive. 2 However, scholars have recognized that 

1 130 S. Ct. 2971 (2010) (holding school's "all-comers policy," which required the 
Christian Legal Society to accept all applicants regardless of their religious beliefs, to 
be constitutional). Freedom of association precedent is not at the forefront of Martinez, 
as the opinion is based largely on limited-forum precedent. However, associational 
freedom was certainly the driving force behind the litigation, and as such, Martinez 
indicates that the contours of those rights remain unclear. 

2 See, e.g., Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000); Hurley v. Irish-Am. 
Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557 (1995); N.Y. State Club Ass'n, Inc. 



this analysis is problematic and may not offer adequate 
associational protection for certain groups. 3 Further, the origins of 
modern associational rights are unclear, and this has led to the 
uncertainty surrounding their true levels of protection. John 
Inazu argues that the right of assembly was "traded" for the 
freedom of association, which he believes emerged from NAACP v. 
Alabama ex rel. Patterson.* To counter his argument, this article 
will present historical and precedential evidence that a non- 
expressive, non-intimate freedom of association pre-dates 
Patterson, as it can be discerned from the debates amongst 
Fourteenth-Amendment framers and the opinions of nineteenth- 
century courts. 

This paper proceeds in three main parts. Part I describes the 
questionable roots and current problems of the modern freedom of 

v. City of New York, 487 U.S. 1 (1988); Roberts v. U.S. Jaycees, 468 U.S. 609 (1984); 
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958). 

3 See, e.g., Evelyn Brody, Entrance, Voice, and Exit: The Constitutional Bounds of 
the Right of Association, 35 U.C. DAVIS L. REV. 821 (2002); William P. Marshall, 
Discrimination and the Right of Association, 81 Nw. U. L. REV. 68 (1986); Seana 
Valentine Shiffrin, Wliat is Really Wrong with Compelled Association?, 99 Nw. U. L. 
REV. 839 (2005); Neal Troum. Expressive Association and the Right to Exclude: Reading 
Between the Lines in Boy Scouts of America v. Dale, 35 CREIGHTON L. Rev. 641 (2002); 
Kevin J. Worthen, One Small Step for Courts, One Giant Leap for Group Rights: 
Accommodating the Associational Role of "Intimate" Government Entities, 71 N.C. L. 
REV. 595 (1993). 

4 John D. Inazu, The Strange Origins of the Constitutional Right of Association, 77 
TENN. L. REV. 485, 486, 562 (2010) ("[N]either the right of association nor its doctrinal 
problems began with Roberts, as the Court first recognized a constitutional right of 
association just over fifty years ago in . . . NAACP v. Alabama ex rel. Patterson. . . . 
Much of the current vulnerability of the right of association stems from the Court's 
reformulation of that right in Roberts. But Roberts cannot bear all of the blame. If 
today's freedom of association is less protected than some might like it to be, the roots 
of its problems may lie in the political, jurisprudential, and theoretical factors present 
at its inception." (footnote omitted)) [hereinafter Inazu, Strange Origins]; John D. 
Inazu, The Forgotten Freedom of Assembly, 84 TUL. L. REV. 565, 611-12 (2010) ("It may 
be that the principles encapsulated in the constitutional right of association embrace a 
kind of group autonomy that broadens the conception of assembly. But I suspect 
otherwise. I have detailed elsewhere the doctrinal problems with the freedom of 
association, both in its original form that emerged in . . . [Patterson] and its 
transformation in . . . [Roberts]. These cases and others have converted the right of 
association into an instrument of control rather than a protection for the people. In 
doing so, they have lost sight of the dissenting, public, and expressive groups that once 
sought refuge under the right of assembly." (footnotes omitted)) [hereinafter Inazu, 
Forgotten Freedom] . 


association doctrine. Part II presents the historical evidence that 
an alternative associational right is deeply rooted in the American 
tradition of civil liberty, beginning with the congressional debates 
surrounding the Civil Rights Act of 1875 and continuing with an 
overview of the traditional limits placed on the scope of public 
accommodation laws by contemporaneous courts. Finally, Part III 
utilizes these historical sources to propose a modification of the 
existing doctrine that would require (1) affording associational 
freedom to activities unaffected with a public interest, even if 
those activities are neither expressive nor intimate, and (2) 
recognizing that the vindication of social rights, as opposed to civil 
rights, does not constitute a public interest. 

I. The Modern Doctrine 

In 1958, the Supreme Court formally announced the freedom 
of association in NAACP u. Alabama ex rel. Patterson by holding 
that the NAACP could not be forced to disclose its membership list 
to state authorities. 5 The Court did not once mention the First 
Amendment, but rather focused on the "fundamental freedoms 
protected by the Due Process Clause." 6 In Justice Harlan's 
confusing opinion, the applicable fundamental freedom stemmed 
from the liberty provision of the Fourteenth Amendment, but 
embraced freedom of speech principles. 7 

Twenty-six years later, the Court recognized in Roberts v. 
United States Jaycees that implicit in this freedom of association 
is the freedom not to associate. 8 Despite this recognition, the 
Court held that Minnesota's public accommodation law could be 

5 357 U.S. 449 (1958). 

6 Id. at 460. It is interesting that the Court employed the Fourteenth Amendment 
without mentioning the First Amendment itself because, prior to Patterson, the Court 
had considered the First Amendment in Fourteenth Amendment contexts. See Sweezy 
v. New Hampshire, 354 U.S. 234, 250 (1957) (plurality opinion) (holding that 
professor's conviction for refusal to answer questions concerning political affiliations 
violated his "liberties in the areas of academic freedom and political expression"). 

7 Sweezy, 354 U.S. at 250. Professor Inazu suggests that the opinion's ambiguity 
was due to the pursuit of unanimity amongst the Court, and that certain Justices, such 
as Frankfurter, pushed for avoidance of First Amendment language. Inazu, Strange 
Origins, supra note 4, at 514. 

8 468 U.S. 609, 623 (1984). 


applied to require the Jaycees to accept women in their ranks. 9 
For the Court, whether Minnesota's law violated the Jaycees' 
associational rights depended on whether the Jaycees were an 
intimate organization 10 or an expressive organization according to 
First Amendment principles. 11 The Court then asked whether the 
state had a compelling interest that could justify infringing the 
Jaycees' intimacy or expression, and whether such an 
infringement was the least restrictive means of achieving that 
state interest. 12 The Court found the Jaycees to be an expressive 
organization, 13 but also found that Minnesota had a compelling 
interest in preventing discrimination against women, 14 and 
because requiring the Jaycees to accept women would not inhibit 
its expression, it was the least restrictive means of achieving the 
state's anti-discrimination interests. 15 

The Court's pre- Patterson application of First Amendment 
principles to the states via the due process clause was murky, but 
most cases did deal with some form of direct expression. 16 As 

9 Id. at 623, 626-27. 

10 Id. at 620. The Court noted that intimate associational protections are 
exemplified by cases involving marriage, childbirth, child-rearing, education, 
cohabitation, and other relationships "distinguished by such attributes as relative 
smallness, a high degree of selectivity in decisions to begin and maintain the 
affiliation, and seclusion from others." Id. at 619-20. For the Court, the Jaycees' low 
level of selectivity was what primarily qualified it as non-intimate. 

11 Id. at 622 ("According protection to collective effort on behalf of shared goals is 
especially important in preserving political and cultural diversity and in shielding 
dissident expression from suppression by the majority." (citing NAACP v. Alabama ex 
rel. Patterson, 357 U.S. 449, 462 (1958))). 

12 Id. at 623-26. 

13 Id. at 626-27 (recognizing that the Jaycees engaged in many civic activities 
including lobbying and fundraising, and that these activities involved political stances, 
and therefore qualified it as an expressive organization). 

14 Id. at 625-26. 

15 Id. at 628-29. The Court found that the Jaycees failed to demonstrate that 
admitting women into its organization would impede it from engaging in these 
activities or "dissimenatfing] its preferred views." Id. at 627. Further, being compelled 
to admit women would not prevent the organization from excluding individuals based 
on ideological differences and the Court also dismissed the notion that, if women were 
admitted, there would be some sort of inherent ideological shift or that the group's 
political stances would slowly change over time, refuting such an argument as 
stereotypical and generalized. Id. at 627-28. 

16 The incorporation of the First Amendment has a very ambiguous history. See 
Sweezy v. New Hampshire, 354 U.S. 234, 249-50 (1957) (plurality opinion) 


such, Patterson, which arguably did not, serves as an odd bridge to 
the Court's holding in Roberts that only intimate and expressive 
associational rights are protected. This incongruence is apparent 
when one examines what elements Patterson lacks. It did not 
involve exclusion, discrimination, or public accommodation laws, 
and did not focus wholly on speech because it had little to do with 
expression. After all, the members of the NAACP wanted to 
withhold their identities. This is not to say that an organization 
cannot be expressive if its members are not known by name, but 
because Alabama was trying to force the organization to be more 
"extroverted" in a sense, and the NAACP was invoking the 
freedom of association to protect its ability to remain 
"introverted," it was a stretch for the Court to claim twenty-six 
years later that expression is a pre-requisite to non-intimate 
associational protection. 17 

C[P]etitioner's right to lecture and his right to associate with others were 
constitutionally protected . . . [by] the Fourteenth Amendment."); W. Va. State Bd. of 
Educ. v. Barnette, 319 U.S. 624, 639 (1943) ("[I]t is important to distinguish between 
the due process clause of the Fourteenth Amendment as an instrument for 
transmitting the principles of the First Amendment and those cases in which it is 
applied for its own sake."); Cantwell v. Connecticut, 310 U.S. 296, 305 (1940) ("Such a 
censorship of religion ... is a denial of liberty protected by the First Amendment and 
included in the liberty which is within the protection of the Fourteenth."); De Jonge v. 
Oregon, 299 U.S. 353, 364 (1937) ("Freedom of speech and of the press are fundamental 
rights which are safeguarded by the due process clause of the Fourteenth Amendment 
of the Federal Constitution." (citations omitted)); Gitlow v. New York, 268 U.S. 652, 
666 (1925) ("For present purposes we may and do assume that freedom of speech and of 
the press — which are protected by the First Amendment from abridgment by 
Congress — are among the fundamental personal rights and 'liberties' protected by the 
due process clause of the Fourteenth Amendment from impairment by the States. We 
do not regard the incidental statement in [Prudential] that the Fourteenth Amendment 
imposes no restrictions on the States concerning freedom of speech, as determinative of 
this question." (footnote omitted)); Prudential Ins. Co. of Am. v. Cheek, 259 U.S. 530, 
543 (1922) ("[NJeither the Fourteenth Amendment nor any other provision of the 
Constitution of the United States imposes upon the states any restrictions about 
'freedom of speech' . . . ."). 

17 Further, the Patterson Court had noted that "it is immaterial whether the beliefs 
sought to be advanced by association pertain to political, economic, religious or cultural 
matters, and state action which may have the effect of curtailing the freedom to 
associate is subject to the closest scrutiny." NAACP v. Alabama ex rel. Patterson, 357 
U.S. 449, 460-61 (1958). This language also suggests that Patterson protects the right 
to associate, not the right to associate to express. See Jason Mazzone, Freedom's 
Associations, 77 WASH. L. REV. 639, 646 (2002) ("[Reliance on the principles of] 
expressive association has shifted the focus away from associating and to the more 


The first problem with the Roberts transition to protecting 
only First Amendment free speech principles in non-intimate 
associational contexts is that it requires courts to pry into the 
inner workings of organizations in order to (1) discern any 
expressiveness, and (2) determine what effectuates such 
expressiveness or may permissibly inhibit such expressiveness. 18 
Many believe that courts are ill-equipped to make those 
determinations. 19 While it is not wholly illogical or disingenuous 
to assume that an organization like the Jaycees loses minimal 
expressive ability by being forced to accept women, this "court 
intrusion problem" would continue to be exacerbated by post- 
Roberts courts 20 and it would reach its problematic peak in Boy 
Scouts of America u. Dale and its lower-court progeny. 21 

The second problem with the Roberts analysis is that it places 
little weight on whether an organization supplies goods or services 
to the public at large, which intuitively is a critical factor in 
determining whether its association can legitimately be deemed 
private. Rather than delving into the "quasi-public" elements of 
the Jaycees or determining that it was "affected with a public 

familiar First Amendment territory of speech, messages, and the like." (emphasis 
added)). Ultimately, while Patterson may have contained a multitude of First- 
Amendment-type language, the issue actually adjudicated did not seem to hinge on 
expression at all. 

18 See La. Debating & Literary Ass'n v. City of New Orleans, 42 F.3d 1483, 1500 
(5th Cir. 1995) ("[I]f those clubs must go public, in order to remain private, then their 
privacy rights ring hollow indeed . . . ."). 

19 See Shiffrin, supra note 3, at 847-48 ("[The analysis] requires judges to engage in 
fairly detailed, intrusive forms of interpretative review of what an association really 
stands for, what sorts of dissent and difference would really threaten that stance, what 
is really entailed by a policy statement, [and, in the case of Dale,] what it would really 
mean to be opposed to homosexuality, and how volubly, on what grounds, and in what 
fora someone who was really opposed to homosexuality would speak." (footnote 

20 See, e.g., Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839, 857 (2d Cir. 
1996) (holding that after-school Christian group could be forced to accept non- 
Christians for certain officer positions because, for example, "an agnostic with an 
understanding of 'Christian Sensibilities' might plan these activities as well as any 
other student"); Pines v. Tomson, 206 Cal. Rptr. 866, 877-78 (Cal. Ct. App. 1984) 
(holding that the Christian Yellow Pages company could be forced to include non- 
Christian advertisers because, in the court's view, the Christians-only requirement 
likely did not further the organization's interest in providing its customers with 
opportunities to network with fellow Christian businesses anyway). 

21 530 U.S. 640 (2000); see cases cited infra notes 30, 33. 


interest" as earlier courts might have, 22 the Court instead averred 
that Minnesota could constitutionally assert a compelling interest 
in ensuring public access to intangibles such as leadership skills 
and business networking. 23 To the Court, the validity of this 
interest in ensuring access to such intangibles logically followed 
from the theretofore gradual expansion of public accommodation 
laws. 24 While it can hardly be said that this aspect of Roberts is a 
"transition" from Patterson, 25 it must be reemphasized that 
Patterson did not deal with exclusion or state anti-discrimination 
measures. It can therefore be argued that the Roberts Court relied 
upon shaky precedent for evaluating associational freedom as a 
defense to public accommodation law applicability. Just as the 
court-intrusion analysis would solidify with Dale, the level of 
attention given to the public nature of the groups' activities would 

In 2000, the Supreme Court held in Boy Scouts of America u. 
Dale that New Jersey's public accommodation law was 
unconstitutional as applied to require the Boy Scouts of America 
(BSA) to retain a Scoutmaster whom the BSA discovered to be a 
homosexual gay-rights activist. 26 The Court had little difficulty 
determining that the BSA was an expressive organization, 27 but 
its majority and minority opinions went much further than 

22 See discussion infra Part II. B. 

23 Roberts v. U.S. Jaycees, 468 U.S. 609, 623, 626 (1984). 

24 Id. at 626 ("This expansive definition [of public accommodation laws] reflects a 
recognition of the changing nature of the American economy and of the importance, 
both to the individual and to society, of removing the barriers to economic advancement 
and political and social integration . . . ." (citations omitted)). To the Roberts Court's 
credit, however, they did evaluate the Jaycees' level of selectivity, which is certainly 
indicative of its private or public nature, and future courts would fail to fully consider 
this aspect. See, e.g., State v. Burning Tree Club, Inc., 554 A.2d 366, 379 (Md. 1989); 
Donaldson v. Farrakhan, 762 N.E.2d 835, 838-39 (Mass. 2002); Concord Rod & Gun 
Club, Inc. v. Mass. Comm'n Against Discrimination, 524 N.E.2d 1364, 1367 (Mass. 

25 The Patterson opinion contained little private or public analysis except for one 
portion, in which Justice Harlan noted that "fi]nviolability of privacy in group 
association may in many circumstances be indispensable to preservation of freedom of 
association, particularly where a group espouses dissident beliefs." NAACP v. Alabama 
ex rel. Patterson, 357 U.S. 449, 462 (1958) (citation omitted). 

26 530 U.S. 640, 656 (2000). 

27 Id. at 650. 


Roberts in analyzing whether forced inclusion would violate the 
BSA's expressive associational rights. Reaffirming that this 
analysis requires courts to determine what an organization 
believes to be in its best interests, and how best to effectuate those 
interests, the Court examined BSA policy manuals, handbooks, 
and memos to determine "the nature of the Boy Scouts' view of 
homosexuality." 28 Despite Justice Rehnquist's assertions to the 
contrary, 29 the Court seemingly required there to be a strong 
showing that BSA sincerely held its views regarding the exclusion 
of homosexuals. 30 Justice Stevens, speaking for the minority, 
would have required an even greater display of the BSA's 
principles, stating that "[a]t a minimum, a group seeking to 
prevail over an antidiscrimination law must adhere to a clear and 
unequivocal view." 31 Myriad commentators have recognized the 
pitfalls of such over-zealous evaluations of organizational goals 
and messages, 32 but lower courts have nonetheless adhered to this 
approach. 33 

28 Id. at 650. The New Jersey Supreme Court had done the same thing, finding 
that the "exclusion of members solely on the basis of their sexual orientation is 
inconsistent with Boy Scouts' commitment to a diverse . . . membership . . . ." Id. at 
650-51 (quoting Dale v. Boy Scouts of Am., 734 A.2d 1196, 1226 (N.J. 1999)) (internal 
quotation marks omitted). 

29 Id. at 651 ("[I]t is not the role of the courts to reject a group's expressed values 
because they disagree with those values or find them internally inconsistent." 
(citations omitted)). 

30 There is a certain amount of tension in the opinion. First, Rehnquist asserted 
that the "inquiry necessarily requires us first to explore, to a limited extent, the nature 
of the Boy Scouts' view of homosexuality." Id. at 650. But later, in rejecting the New 
Jersey Supreme Court's finding that the exclusion of Dale was antithetical to Boy 
Scouts' philosophy, he stated, "[0]ur cases reject this sort of inquiry . . . ." Id. at 651. 
Perhaps the Court's divergent language can be reconciled as essentially stating that a 
review of organizations' inner workings was not necessary, but even if it were, the Boy 
Scouts' inner workings were consistent with its exclusion of Dale. Even so, it is clear 
that the Court required some consistency of message and exclusion, and if lower post- 
Dale courts are any indication, such consistency must be readily apparent. See, e.g., 
Villegas v. City of Gilroy, 484 F.3d 1136, 1138, 1140 (9th Cir. 2007) (holding that a 
motorcycle club did not engage in any sort of expressive association in part because its 
views were internally inconsistent regarding what their insignia represented). 

31 Id. at 676 (Stevens, J., dissenting). Further, Justice Stevens disliked Justice 
Rehnquist's assertion regarding deference, claiming that the Court should not "look[| 
at what a litigant asserts in his or her brief and inquir[e] no further." Id. at 686. 

32 See, e.g., Dale Carpenter, Expressive Association and Anti-Discrimination Law 
after Dale: A Tripartite Approach, 85 MINN. L. REV. 1515, 1542 (2001) (arguing that 


Also important, the Dale decision represents an 
abandonment of determining the public extent of private 
organizational activities. Having no objection to the fact that New 
Jersey "went a step further" with its public accommodation law by 
neglecting to link ensured access to a physical place, the Court 
merely recognized that the expansiveness of such laws creates 
more potential for conflicts between First Amendment freedoms 
and state anti-discrimination measures, which shows that the 
Court clearly viewed expression as the sole barrier to such laws. 34 
As such, the Court failed to consider the argument that, in some 
situations, the First Amendment question should not even be 
addressed due to the private nature of the activities at issue. In 
other words, if it cannot be logically said that a public 
accommodation law ensures access to a certain activity in the first 
place, the expressiveness of that activity should be irrelevant to 
its associational integrity. 35 

unpopular groups and those that encourage internal dissent and radical discussion will 
suffer the most under Dale's approach of requiring a clearly articulated message); 
Richard A. Epstein, The Constitutional Perils of Moderation: The Case of the Boy 
Scouts, 74 S. CAL. L. REV. 119, 120 (2000) ("The fine-spun efforts to shoehorn freedom 
of association into some ill-defined expressive box will breed only pointless and arcane 
distinctions."); Brody, supra note 3, at 851 (noting that the Court in Dale "struggle[d] 
with the distinction between speech and status" because "membership and message 
[are] not to be equated" and arguing that the Court treated Dale as walking speech, 
and that he did not violate any organizational beliefs by simply being gay); Shiffrin. 
supra note 3, at 848 ("Such review involves a form of judicial scriptwriting that is 
antithetical to a thorough-going concern about judicial imposition of content and the 
free exploration and articulation of ideas." (footnote omitted)). 

33 See, e.g., Mill River Club, Inc. v. N.Y. State Div. of Human Rights, 873 N.Y.S.2d 
167, 173 (N.Y. App. Div. 2009) (holding that club's freedom of association was not 
violated where public accommodation law prevented it from maintaining a membership 
composed half of Jews and half of Christians in order to promote diverse religious 
discussion because it did "not prevent the club from excluding applicants who [did] not 
subscribe to its goal of religious diversity in its membership, . . . [and] because it [did] 
not prohibit the club from advocating its viewpoint that a religiously diverse 
membership is vital"). 

34 Dale, 530 U.S. at 657. But see Thomas v. Anchorage Equal Rights Comm'n, 102 
P.3d 937, 946 (Alaska 2004) (stating that implicit in Dale's holding was that New 
Jersey's public accommodation law simply went too far in the first place, despite the 
Court's brief gloss over its applicability). 

35 The Dale Court's lack of clarity on the permissible scope of public 
accommodation law applicability to private activities has perhaps framed some of the 
private-public confusion that lower courts have confronted. See Chi. Area Council of 
Boy Scouts of Am. v. City of Chi. Comm'n on Human Relations, 748 N.E.2d 759, 767-68 


The rest of this paper presents evidence of an associational 
right, deeply rooted in the American tradition of civil liberty, 
which protects organizational freedom of association on a third 
level. This right emanates from the firmly established notion that 
legitimate government control of a private activity requires some 
showing that the private activity at issue is affected with a public 
interest. As discussed above, the Patterson Court had little cause 
to consider this notion, and as such, Patterson served as 
questionable precedent for Roberts. Therefore, the Court's modern 
analysis of individual freedom in the face of public accommodation 
laws is missing a key element. If the Court had instead focused on 
framers' and past courts' evaluations of public accommodation 
laws, it would have uncovered a legal tradition, valuing social 
autonomy, that places an initial safeguard between private 
organizations and legislative power. 

II. History and Tradition 

John Inazu argues that the freedom of association emerged 
from the Court's decisions in Patterson and contemporaneous 
cases. 36 While it is clear that the right was not formally 
announced until Patterson, and I would agree with Inazu that 
modern freedom of association scholarship errs in claiming that 
the right originated with Roberts, there is evidence that it 
significantly pre-dates Patterson, as it can be discerned from the 
emphasis unrelentingly placed on private autonomy by framers 
and courts in anti-discrimination contexts. Given that the 
Supreme Court's current approach to recognizing substantive due 

(111. App. Ct. 2001) (remanding for a determination of whether a non-scoutmaster 
position was sufficiently non-expressive such that a public accommodation law could 
ensure access to it); Donaldson v. Farrakhan, 762 N.E.2d 835, 840 (Mass. 2002) 
(standing for the notion that a place normally regarded as a public accommodation can 
become a "non-public enclave" under certain circumstances, thereby precluding public 
accommodation law applicability). 

36 Inazu, Strange Origins, supra note 4, at 486, 562. There, Inazu did not consider 
Fourteenth-Amendment-framing-era material in his analysis. Id. In his other extensive 
work, Inazu analyzed the history of the freedom of assembly, touching upon 
antebellum abolitionism, women's suffrage movements, New Deal labor movements, 
the civil rights movements, and the Red Scare, but again did not discuss this time 
period. See Inazu, Forgotten Freedom, supra note 4. 


process rights hinges upon whether such a right is "deeply rooted 
in this Nation's history and tradition," 37 this evidence suggests the 
existence of a non-expression-based associational right. This 
tradition of affording associational integrity to activities when 
they are private is apparent in two key historical and precedential 
areas: the congressional debates surrounding the Civil Rights Act 
of 1875, and the prior and subsequent cases limiting the 
applicability of state public accommodation laws. 

A. The Congressional Debates Surrounding the Civil Rights 

Act of 1875 

There is a cavity in freedom of association scholarship due to 
the absence of works analyzing how the Civil Rights Act of 1875 
may frame the modern doctrine. While Alfred Avins examined the 
significance of this time period as it related to public 
accommodation laws in 1966, his piece is now severely dated and 
therefore does not consider any direct relevance between the 
congressional debates and post-Roberts cases. 38 These debates are 
a valuable resource because they are contemporaneous with the 
adoption of the Fourteenth Amendment and demonstrate what 

37 Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (citations omitted). While 
Fourteenth Amendment framers likely would have considered any such freedom (if 
stemming from the Fourteenth Amendment) to derive from the privileges or 
immunities clause, for purposes of this article it is assumed that the historical 
standard for recognizing privileges and immunities is the same as the one for 
recognizing substantive due process rights. See Josh Blackman & Ilya Shapiro, Keeping 
Pandora's Box Sealed: Privileges or Immunities, the Constitution in 2020, and Properly 
Extending the Right to Keep and Bear Arms to the States, 8 GEO. J.L. & PUB. POL'Y 1, 
65-75 (2010) (suggesting that the Glucksberg standard could be supported by privileges 
or immunities clause); Christopher R. Green, The Original Sense of the (Equal) 
Protection Clause: Subsequent Interpretation and Application, 19 GEO. MASON U. C.R. 
L.J. 219, 257 n.173 (2009) (same) [hereinafter Green, (Equal) Protection Clause]; 
Christopher R. Green, The Original Sense of "Of in the Privileges or Immunities 
Clause 115-32 (Aug. 14, 2010) (unpublished manuscript), available at (same) [hereinafter Green, Privileges or Immunities 

38 See Alfred Avins, The Civil Rights Act of 1875: Some Reflected Light on the 
Fourteenth Amendment and Public Accommodations, 66 COLUM. L. REV. 873 (1966). 
However, Avins offers a much more thorough history of the Act, as well as an 
interesting discussion of the debaters' constitutional bases for approval and 
disapproval of the Act. See id. at 881. 


framers were thinking in terms of forced inclusion. 39 In doing so, 
they illustrate an American tradition of affording associational 
autonomy to truly private organizations regardless of the intimate 
or expressive nature of the organizations' activities. 

In 1870, Republican Senator Charles Sumner of 
Massachusetts introduced what would later be known as the Civil 
Rights Act of 1875. 40 The Act was designed to ensure equal access 
to public accommodations, including theaters, inns, public schools, 
churches, and cemeteries. 41 Perhaps the most controversial aspect 
of the legislation was that it could be enforced against private 
individuals. 42 As such, what qualified an entity or activity as 
"private" was bound to be the source of much debate. While struck 
down as unconstitutional by the Supreme Court's decision in The 
Civil Rights Cases in 1883, 43 the Act has relevance to current 
freedom of association doctrine due to the arguments surrounding 
its adoption. Through these arguments, in which private 
autonomy was highly valued, the framers made clear their belief 
in a non-expressive associational right applicable to purely private 

The Democratic senators opposing the Act thought the 
federal government should not have the power to regulate "hotel 
companies, theatrical companies, churches, schools, [etc.]" on such 

39 As Professor Avins stated, "[T]he Constitution must be interpreted to meet new 
conditions, but the basic understanding of the framers cannot be discarded . . . ." Id. at 
874; see also Christopher R. Green, Originalism and the Sense -Reference Distinction, 50 
St. LOUIS U. L.J. 555, 591 (2006) ("[Assessments of constitutional reference, 'while not 
controlling upon [later interpreters of the Constitution] by reason of their authority, do 
constitute a body of experience and informed judgment to which [later interpreters] 
may properly resort for guidance."' (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 

40 The bill died in the Judiciary Committee several times, and was finally re- 
introduced as a rider to the amnesty bill authorized by the Fourteenth Amendment. 
CONG. GLOBE, 42d Cong., 2d Sess. 237 (1871). 

41 See CONG. GLOBE, 42d Cong., 2d Sess. 244 (1871). 

42 Indeed, when the Act was "revived" in 1964, this remained the most 
controversial aspect. See Melville B. Nimmer, A Proposal for Judicial Validation of a 
Previously Unconstitutional Law: The Civil Rights Act of 1875, 65 COLUM. L. REV. 
1394, 1396 (1965). 

43 The Civil Rights Cases, 109 U.S. 3 (1883) (holding that the Fourteenth 
Amendment did not give Congress the authority to regulate private acts). 


an intrusive level. 44 At the core of the arguments between 
Republicans and Democrats concerning access to public 
accommodations, however, was the private-public distinction. For 
Democratic senators like Garrett Davis of Kentucky, a corporate 
charter was not enough to "open[| those associations to every 
citizen who may choose to force his way into them." 45 Some 
Republicans agreed, 46 but the Act's supporters believed that 
public funding, derived from taxation, provided the critical public 
distinction. 47 

Democratic Senator Allen Thurman of Ohio illustrated 
countervailing concerns when he spoke of his disdain for the Act's 
application to cemeteries, which had the potential to render 
families unable to choose their burial neighbors. 48 When Thurman 
asked Congress whether it could "thrust into that cemetery . . . the 
body of any man," Republican Senator Matthew Carpenter 
reiterated his earlier interruption: "So far as they are supported 
by taxation." 49 In response to this, Thurman asked, "Is a common 
inn supported by taxation? . . . Does a common carrier derive his 
means from taxation?" 50 Sumner then joined in the exchange to 
further illustrate the ambiguities of formulating any private- 
public distinction, suggesting that all franchises deriving their 
protection from the laws would be subject to the act. 51 This seems 

44 CONG. GLOBE, 42d Cong., 2d Sess. 764 (1872). 
« Id. 

46 For Republican Representative Arthur Boreman of West Virginia: "Now, sir, 
many of the cemetery associations and the numerous benevolent associations that we 
have in the States, have acts of incorporation; . . . but they are for all practical 
purposes, and to all practical intent private establishments." CONG. GLOBE, 42d Cong., 
2d Sess. 3195 (1872). Republican Senator Lot Morrill of Maine felt similarly, arguing 
that the privileges or immunities clause did not ensure access to "common schools, . . . 
churches, . . . benevolent institutions, . . . theaters and places of public amusement." 
CONG. GLOBE, 42d Cong., 2d Sess. app. 1-4 (1872). 

47 Republican Matthew Carpenter of Wisconsin: "I think the ground upon which 
this common right of all the citizens of this country to participate in the benefits of 
benevolent institutions should be based is not whether it happens or not to be 
incorporated, but whether it is supported at the public expense." CONG. GLOBE, 42d 
Cong, 2d Sess. 760 (1872). 

48 CONG. GLOBE, 42d Cong., 2d Sess. app. 27-29 (1872). 

49 Id. at 27-28. 

50 Id. at 28. 

51 Id. at 29 ("I submit it to the Senator, the innkeeper, and also the common 
carrier, has something in the nature of a franchise under the law. Each has peculiar 


to have startled Thurman, whose response to Sumner warned of a 
vast and overreaching regulatory scheme through which the 
federal government would exercise too much control over private 
persons. 52 

These exchanges offer a terse preview of the public-private 
battles that would ensue for years after the enactment of the 
Fourteenth Amendment. The language employed by Republican 
Senator Frelinghuysen was particularly prophetic of later cases 
considering a "quasi-public" realm. 53 These portions of the debates 
also alluded to subsequent cases concerning the ability of legal 
and regulatory schemes to transform private into public and 
subject arguably private organizations to legislative control. 54 

privileges and prerogatives, and is subject to peculiar responsibilities, the whole being 
the franchise which he derives from law, and which is regulated by law. The argument 
follows that in the exercise of that franchise he must conform to the fundamental 
principles of our institutions."). 

62 Thurman, after averring that law regulates every institution in some way, 

It will not do therefore to say, that, because the law regulates inns, common 
carriers, and the like, therefore Congress has the power to . . . intrude upon 
the rights of the citizens and make laws that deprive him of that liberty 
which he ought to possess and which is guarantied [sic] to him. That is not 
regulation, it is usurpation and tyranny. 


53 See 2 CONG. REC. 3452 (1874) ("As the capital invested in inns, places of 
amusements, and public conveyances is that of the proprietors, and as they alone can 
know what minute arrangements their business requires, the discretion as to the 
particular accommodation to be given to the guest, the traveler, and the visitor is quite 
wide. But as the employment these proprietors have selected touches the public, the 
law demands that the accommodation shall be good and suitable, and this bill adds to 
that requirement the condition that no person shall, in the regulation of these 
employments, be discriminated against merely because he is an American or an 
Irishman, a German or a colored man."). 

54 See Frost v. R.R. Comm'n, 271 U.S. 583, 592 (1926) ("[Consistently with the due 
process clause of the Fourteenth Amendment, a private carrier cannot be converted 
against his will into a common carrier by mere legislative command . . . ."); Mich. Pub. 
Utils. Comm'n v. Duke, 266 U.S. 570, 577-78 (1925) ("[I]t is beyond the power of the 
state by legislative fiat to convert property used exclusively in the business of a private 
carrier into a public utility . . . ."). While these two cases concerned railroad and 
highway regulations respectively, they could be employed for the general principle 
that, once a state public accommodation law purports to encompass certain activities 
and it is decided that an arguably private activity is covered, there has been some sort 
of legislative transformation of a private carrier into a common carrier. Those opinions 
focused on the argument that states did not have the power to enact such laws more so 


While these skirmishes are instructive as to what congressmen 
considered to fall within the Act's reach, the focus should not just 
be on what exact activities or institutions each congressman 
thought to be private or public. Rather, another important aspect 
of these arguments stems from what they agreed upon: there was 
some private line that the Civil Rights Act of 1875 could not cross. 
For example, the Democrats were particularly concerned 
with the Act's potential effects on clubs and club-like associations. 
Senators like Thurman thought that benevolent societies, such as 
Masonic or Odd Fellows lodges, ought to have the right to exclude 
black people completely. 55 Indeed, it appears Thurman thought 
that any club or group ought to have the right to exclude anyone 
on any basis, no matter how arbitrary. 56 And while perhaps not 
wholly in agreement with Thurman, some Republicans supported 
weakening the bill's applicability to such associations as well. 
Senator Roscoe Conkling of New York thought the bill should only 
cover institutions supported by taxes. 57 Further, Representative 
Boreman proposed, and Sumner accepted, that the portion of the 
Act covering benevolent institutions should include the language 

than the argument that citizens had the right not to have such laws applied to them. 
But they were nonetheless contemplating a private autonomy that hinged upon the 
public interest. See Duke, 266 U.S. at 576 ("He has done nothing to give rise to a duty 
to carry for others. The public is not dependent on him or the use of his property for 
service . . . ."); see also Donnell v. State, 48 Miss. 661, 682 (1873) (rejecting a Fifth- 
Amendment-takings-style argument against public accommodation law applicability). 

55 CONG. GLOBE, 42d Cong., 2d Sess. app. 27 (1872). 

56 Id. ("If the colored men should see fit to establish a club of black fat men, or fat 
black men — whichever is the proper expression — I do not see that they ought to be 
deprived of the privilege of doing it. Nay, more, sir, if the red-headed men in the city of 
Washington should choose to form a club of red-headed men, and say that nobody but 
red-headed men should be members of that club, I think they ought to have that 
privilege . . . ."). 

57 CONG. GLOBE, 42d Cong., 2d Sess. 3266 (1872) ("[The term incorporated] is 
equivalent to 'authorized by law;' but the Senator will observe that he or I, in his State 
or mine, may under a general act or special charter go on and organize an institution 
which he and his friends, a little group of individuals, . . . endow. Many such exist in 
my own State. It is their private property. Nobody else has anything in the world to do 
with it. It is just a venture of their own .... I will take for illustration an institution 
established for the benefit of those unsound of mind. ... It is established by private 
funds, to be sure; but it is established under law. It is not a private institution. It is 
open to anybody who chooses to go and pay, but is in no sense sustained by taxation. It 
is a mere voluntary private adventure of humanity, if I may so say, of those engaged in 
it. . . . Just as if it were a personal establishment."). 


"of a public character," and that this public-character requirement 
should apply even to tax-supported institutions. 58 

However, one of the strongest indicators of the framers' 
recognition of private organizational autonomy is that they 
removed the provisions of the Act that applied to churches. While 
religious freedom under the free exercise clause was well- 
recognized, 59 theoretically, the presence of black people at a 
church would not have inhibited any religious expression. 60 As 
such, it appears the framers contemplated an intrinsic 
associational right, neither expressive nor intimate, but one 
largely of privacy, which could allow certain organizations to 
discriminate, regardless of incorporation. 61 Senators like 
Republican Oliver P. Morton noted that churches were "purely 
voluntary organizations." 62 When Senator Carpenter interrupted, 
"[Even] if they are incorporated?," Morton responded: 

Yes, sir, if they are incorporated. The Senator understands 
why they are incorporated. It is not for the purpose of 
affecting their faith. Acts of incorporation are not extended to 
churches because of the character of their faith. A 
Mohammedan church would be incorporated as readily as any 
other under the laws of any State. They are purely voluntary 
organizations, and they are incorporated as a matter of public 
convenience to enable them to hold property to carry out the 
purposes of the private voluntary organization. 63 

58 Id. at 3267. However, Sumner did not accept the amendment proposed by 
Democratic Senator George Vickers of Maryland that all institutions authorized by law 
must be of a public character to be covered. Id. Sumner's justification was that some 
institutions are authorized by law, but not tax-supported, and therefore should not be 
able to discriminate, giving the example of Harvard College. Id. 

59 Indeed, the First Amendment was the basis for the opposition to the churches 
provision. CONG. GLOBE, 42d Cong., 2d Sess. 896-97 (1872). 

60 That is, unless the religion itself called for segregation. 

61 Admittedly, churches are a far cry from certain benevolent institutions and 
societies. Many would argue that there is "just something different" about churches 
when it comes to the right to exclude. That is the point, however. This distinction is 
inarticulable and perhaps fleeting, but is there nonetheless. 

62 CONG. GLOBE, 42d Cong., 2d Sess. 898 (1872); see also CONG. GLOBE, 42d Cong., 
2d Sess. app. 43 (1872) (Senator Vickers asserting no federal "right to interfere . . . with 
the churches in the States . . . ."). 

6i > CONG. GLOBE, 42d Cong., 2d Sess. 898 (1872). 


Not only did the framers not rely on expression in their 
arguments that certain activities fell outside the Act's reach, the 
language above suggests that in their view, the level of an 
organization's expression was completely divorced from the 
question of whether the state could enforce public accommodation 
laws against it. 

There are also numerous examples that senators on both 
sides of the debate felt that it was not within federal power to 
enforce or accelerate social equality, but rather that egalitarian 
social norms had to develop gradually and naturally. 64 While 
Democrats employed such arguments in opposition to the Act, 65 
Republicans like Senator Frelinghuysen employed them in 
attempt to ensure the Act's limited reach, stating: 

Again let me say that this measure does not touch the subject 
of social equality. That is not an element of citizenship. The 
law which regulates that is found only in the tastes and 
affinities of the mind; its law is the arbitrary, uncontrolled 
human will. You cannot enact it. 66 

This general disdain for the enforcement of social equality would 
recur in cases both contemporaneous and remote, and be one of 

64 CONG. GLOBE, 42d Cong., 2d Sess. app. 29 (1872) (Senator Thurman: "No one 
pretends that a colored man should not have accommodation at an inn .... What his 
bill aims to accomplish — disguise it as you may — is social equality in the inn."); id. at 
217 (Representative Henry McHenry of Kentucky: "If a man sees proper to associate 
with negroes, ... I would not abridge his right to do so; but that is a very different 
thing from compulsory social equality and association with those whose company is 
distasteful to him."). Also, concerning the social repercussions of such an Act, 
Democrats believed it would inspire in blacks contempt for their state governments 
and dependency on the federal government. 2 CONG. REC. app. 4 (1874) (Representative 
John Glover of Missouri: "I would not eternally parade him before Congress and the 
nation, and thus teach him to despise the State government under which he 
lives . . . ."). 

65 For example, Eli Saulsbury of Delaware stated: "Disguise it as you may, it is 
nothing more nor less than an attempt on the part of the American Congress to enforce 
association and companionship between the races in this country." 2 CONG. REC. 4157 

66 2 CONG. REC 3451 (1874). 


the strongest arguments against state anti-discrimination 
measures. 67 

At the end of the day, "Sumner could afford to ignore the 
protests of a Democrat" to the Act. 68 But fellow Republican 
Senators' protests, like Lot Morrill's, attacked Sumner's asserted 
constitutional bases for the bill. 69 In response, Sumner pleaded: 

Why, sir, the Constitution is full of power; it is overrunning 
with power. I find it not in one place or in two places or three 
places, but I find it almost everywhere, from the preamble to 
the last line of the last amendment. ... I find it, still further, 
in that great rule of interpretation conquered at Appomattox . 
... I say a new rule of interpretation for the Constitution, 
according to which, in every clause and every line and every 
word, it is to be interpreted uniformly for human rights. 70 

As such, seven Republicans did not vote for the Act, and it 
passed with a vote of only 38 to 26. Sumner died in 1874, and only 
a truncated version of his bill passed, lacking such provisions as 
the ones that covered schools and cemeteries. 71 The Act would be 

67 See, e.g., Ferguson v. Gies, 46 N.W. 718, 720-21 (Mich. 1890) ("Socially people 
may do as they please within the law, and whites may associate together, as may 
blacks, and exclude whom they please from their dwellings and private grounds; but 
there can be no separation in public places between people on account of their color 
alone which the law will sanction. . . . The man who goes either by himself or with his 
family to a public place must expect to meet and mingle with all classes of people. He 
cannot ask, to suit his caprice or prejudice or social views, that this or that man shall 
be excluded because he does not wish to associate with them. He may draw his social 
line as closely as he chooses at home, or in other private places, but he cannot in a 
public place carry the privacy of his home with him, or ask that people not as good or 
great as he is shall step aside when he appears."). 

68 Avins, supra note 38, at 883. 

69 Namely, Morrill attacked Sumner's reliance on the Declaration of Independence. 
CONG. GLOBE, 42d Cong., 2d Sess. app. 3 (1872). 

70 CONG. GLOBE, 42d Cong., 2d Sess. 727 (1872). 

71 In its final form, the Act provided: 

Whereas, it is essential to just government we recognize the equality of all 
men before the law, and hold that it is the duty of government in its dealings 
with the people to mete out equal and exact justice to all, of whatever 
nativity, race, color, or persuasion, religious or political; and it being the 
appropriate object of legislation to enact great fundamental principles into 
law: Therefore, 


overruled in 1883, but in the debates surrounding its adoption, a 
consensus amongst the framers emerges — one valuing private 
associational integrity. The true disagreement, then, regarded 
merely what activities were private and therefore entitled to such 
autonomy. 72 Even Sumner himself recognized that such purely 

Be it enacted by the Senate and House of Representatives of the United States 
of America in Congress assembled, That all persons within the jurisdiction of 
the United States shall be entitled to the full and equal enjoyment of the 
accommodations, advantages, facilities, and privileges of inns, public 
conveyances on land or water, theaters, and other places of public 
amusement; subject only to the conditions and limitations established by law, 
and applicable alike to citizens of every race and color, regardless of any 
previous condition of servitude. 

SEC. 2. That any person who shall violate the foregoing section by denying to 
any citizen, except for reasons by law applicable to citizens of every race and 
color, and regardless of any previous condition of servitude, the full 
enjoyment of any of the accommodations, advantages, facilities, or privileges 
in said section enumerated, or by aiding or inciting such denial, shall, for 
every such offense, forfeit and pay the sum of five hundred dollars to the 
person aggrieved thereby . . . ; and shall also, for every such offense, be 
deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined 
not less than five hundred nor more than one thousand dollars, or shall be 
imprisoned not less than thirty days nor more than one year .... 

SEC. 3. That the district and circuit courts of the United States shall have, 
exclusively of the courts of the several States, cognizance of all crimes and 
offenses against, and violations of, the provisions of this act .... 

SEC 4. That no citizen possessing all other qualifications which are or may be 
prescribed by law shall be disqualified for service as grand or petit juror in 
any court of the United States, or of any State, on account of race, color, or 
previous condition of servitude; and any officer or other person charged with 
any duty in the selection or summoning of jurors who shall exclude or fail to 
summon any citizen for the cause aforesaid shall, on conviction thereof, be 
deemed guilty of a misdemeanor, and be fined not more than five thousand 

SEC 5. That all cases arising under the provisions of this act . . . shall be 
reviewable by the Supreme Court of the United States, without regard to the 
sum in controversy .... 

Civil Rights Act of 1875, ch. 114, 18 Stat. 335. 

72 See Green, Privileges or Immunities Clause, supra note 37, at 118-20 nn. 32-36. 
Green recognizes this Republican acknowledgment that Democratic arguments as to 
associational freedom were not unfounded, but that they simply did not apply in the 
opinion of Republican supporters, stating: 


private associational autonomy precluded intrusion by law, 

Now, there is no question of society here. The Senator may 
choose his associates as he pleases. They may be white or 
black, or between the two. That is simply a social question, 
and nobody proposes to interfere with it. That taste which the 
Senator has now declared belongs to him he will have free 
liberty to exercise always, selecting always his associates; but 
when it comes to rights, there the Senator must obey the law, 
and I insist that by the law of the land all persons without 
distinction of color shall be equal before the law. 73 

Ultimately, this unanimity amongst the framers — that 
associational autonomy should block the intrusion of government 
anti-discrimination measures at some threshold of privacy — shows 
that the framers believed in the existence of some non-expressive 
and non-intimate associational right. 74 This is inferable because 
the institutions at issue — theaters, hotels, trains, cemeteries, 
schools, churches, etc. — arguably lost nothing in the way of 
intimacy or expression by being forced to include black people, 75 
yet the framers still valued their social impenetrability. Also 
important, First Amendment arguments arose only in religious 

My point here is not to adjudicate whether the Republicans or the Democrats 
were right about where to draw the line between private social association 
and the realm of public privileges and civil rights . . . but simply that 
Republicans did acknowledge the existence of a social realm — somewhere — in 
which (a) moral rights against racial insult were invaded, but (b) 
constitutional rights to equal citizenship were not. 

Id. at 157-58 n.220. 

73 CONG. GLOBE, 42d Cong., 2d Sess. 242 (1872). Not to be repetitive, but Sumner's 
language at this point then circled back around to the private versus public distinction, 
expressing that which made the bill unsupportable in the eyes of its opponents: "Show 
me, therefore, a legal institution, anything created or regulated by law, and I will show 
you what must be opened equally to all without distinction of color." Id. 

74 Note, however, that there is no right to social association. City of Dallas v. 
Stanglin, 490 U.S. 19. 23-25 (1989) (holding that social events like dances do not entail 
"intimate human relationships" protected by the First Amendment). 

75 Of course, arguments could be made that institutions like theaters would lose 
something in the way of expression and that cemeteries would lose something in the 
way of intimacy, but it cannot be genuinely argued that such institutions faced the 
same sort of potential interference as the Jaycees in Roberts or the Boy Scouts in Dale. 


contexts, and in essence, it appears that the framers could not 
have foreseen the necessity of invoking expression or intimacy in 
order to substantiate the claim of a private organization that it 
has the right to exclude others. Rather, to them, public- 
accommodation-law enforceability depended on the public nature 
of activities (i.e. to what degree it could be said that members of 
the public should be ensured access to those goods or services) and 
differentiating civil and social rights. 

B. Older Courts & Public Accommodation Laws 

The legal history of America is replete with instances of 
judicial insulation of the private sphere from the legislative 
branch. 76 The Supreme Court delved into such matters as early as 
1819 when it decided in Trustees of Dartmouth College v. 
Woodward that, under the contracts clause of the Constitution, 
the New Hampshire Legislature could not transform Dartmouth 
College into a public institution. 77 There, legal notions as to what 
was private or public were much simpler; government control of 
an institution appeared to be the dispositive factor in such 
determinations, as the concept of "quasi-public" did not seem to 
play into the Court's analysis: 

When the corporation is said, at the bar, to be public, it is not 
merely meant, that the whole community may be the proper 
objects of the bounty, but that the government have the sole 

76 See Morton J. Horwitz, The History of the Public /Private Distinction, 130 U. Pa. 
L. REV. 1423, 1424-25 (1982) ("Although one can find the origins of the idea of a 
distinctively private realm in the natural-rights liberalism of Locke and his successors, 
only in the nineteenth century was the public-private distinction brought to the center 
of the stage in American legal and political theory. Before this could occur, it was 
necessary to undermine an earlier tradition of republican thought that had closely 
identified private virtue and public interest. . . . Above all was the effort of orthodox 
judges and jurists to create a legal science that would sharply separate law from 
politics. By creating a neutral and apolitical system of legal doctrine and legal 
reasoning free from what was thought to be the dangerous and unstable redistributive 
tendencies of democratic politics, legal thinkers hoped to temper the problem of 
'tyranny of the majority.'" (footnote omitted)). 

77 17 U.S. (4 Wheat.) 518 (1819) (holding that the charter granted by the British 
crown to the trustees of Dartmouth College in 1769 was a contract within the meaning 
of the contracts clause and would be unconstitutionally breached by New Hampshire's 
legislative interference). 


right, as trustees of the public interests, to regulate, control 
and direct the corporation, and its funds and its franchises, at 
its own good will and pleasure. Now, such an authority does 
not exist in the government, except where the corporation, is 
in the strictest sense, public; that is, where its whole interests 
and franchises are the exclusive property and domain of the 
government itself. 78 

With the increasing ubiquity of railroads and industry, 
however, judicial recognition was inevitable that some private 
enterprises were intertwined with the public interest and, 
therefore, should not be completely immune to legislative control. 
In New Jersey Steam Navigation Co. v. Merchants' Bank of 
Boston, the Court weighed in on these concerns, stating that such 
entities are "in the exercise of a sort of public office, and ha[ve] 
public duties to perform." 79 States followed suit. In 1858, for 
example, the Wisconsin Supreme Court held that the Milwaukee 
Gas Light Company was of a public character due to the type of 
commodity it provided and distinguished it from enterprises that 
sold such things as "soap, candles or hats." 80 

After the Civil War, the enactment of the Fourteenth 
Amendment, and the advent of public accommodation laws, 81 
considerations of private and public would become germane in 

78 Id. at 671-72. 

79 47 U.S. (6 How.) 344, 382 (1848); see also Olcott v. Supervisors, 83 U.S. (16 
Wall.) 678, 694 (1872) ("That railroads, though constructed by private corporations and 
owned by them, are public highways, has been the doctrine of nearly all the courts ever 
since such conveniences for passage and transportation have had any existence."). 

80 Shepard v. Milwaukee Gas Light Co., 6 Wis. 539, 545 (1858). Notably, an 
important factor in the court's determination that the company was of a public 
character was the fact that it had the exclusive right to sell gas. Id. at 547 ("[As such.] 
how can it be urged that this is a mere private corporation for the manufacture and 
sale of a commercial commodity."). In the early twentieth century, Bruce Wyman 
recognized this to be a pattern amongst courts asserting private corporations' public 
character. Bruce Wyman, The Law of the Public Callings as a Solution of the Trust 
Problem. 17 HARV. L. REV. 156, 161 (1904) ("Upon the whole the circumstances 
surrounding these cases suggest this as the characterizing thing; that in the private 
calling the situation is that of virtual competition, while in the public calling the 
situation is that of virtual monopoly."). 

81 Some states had public accommodation laws prior to the Civil Rights Cases, but 
most state public accommodation laws developed after the Supreme Court held such 
laws unconstitutional on the federal level. 


social and civil senses rather than just economic ones. We have 
seen such arguments fleshed out on the legislative level with the 
adoption of the Civil Rights Act of 1875, but ultimately, it was the 
courts that would have to determine what institutions would be 
affected by public accommodation laws. Even before the Supreme 
Court solidified "quasi-public" as the standard for legislative 
regulation of private enterprises in economic contexts in Munn v. 
Illinois, 82 lower courts were acknowledging that the activities of 
private entities had to be of a public character before public 
accommodation laws could be enforced against them. 

For some courts, showings of public interest simply hinged 
upon whether the private entity in question was licensed. In 
Commonwealth v. Sylvester, the Massachusetts Supreme Court 
held that the state public accommodation law could not be 
enforced against the owner of an unlicensed, private billiards 
hall. 83 The court held such despite arguments from the 
Massachusetts attorney general that the establishment was of 
sufficient public character to be regulated irrespective of any 
formal license. 84 Licensing would play into other courts' 
analyses, 85 but some would focus less on licensing and other 
explicit incorporation elements and concentrate more on the 
public interest at stake. 

In Donnell v. State, for instance, the Mississippi Supreme 
Court found that a theater violated the state public 

82 94 U.S. 113(1876). 

83 95 Mass. 247, 247-48 (1866). 

84 Id. at 247. 

85 See, e.g., Bowlin v. Lyon, 25 N.W. 766 (Iowa 1885). There, the court was willing 
to consider the overall nature of the establishment in determining whether it was 
private or public, but obviously considered the absence of a state license to strongly 
suggest that it was private. Id. at 768 ("[Licensed establishments carry out] business 
under an authority conferred by the public, the presumption is that the intention was 
that whatever of advantage or benefit should result to the public under it should be 
enjoyed by all its members alike. . . . [But because the defendant was not licensed,] 
[t]he public had assumed no control of it, and it does not appear that it is a business in 
which the public have a concern."); see also Faulkner v. Solazzi, 65 A. 947, 948 (Conn. 
1907) (holding that although barbers are licensed for the public welfare, proprietors 
and building-owners that house barbers may not be licensed, and the barber shop was 
therefore not a public accommodation); Hargo v. Meyers & Ludecke, 2 Ohio Cir. Dec. 
543 (1889) (noting that just because defendant restaurant was licensed did not make 
them public and obligated to accommodate everyone). 


accommodation law by refusing to sell a ticket to a black man. 86 
The court rejected a Fifth-Amendment-takings-style argument 
that the law appropriated private property for the public use, 87 
instead finding the theater to be quasi-public, and as such, among 
those "subjects which have always been under legal control." 88 The 
Pennsylvania Supreme Court noted in West Chester & 
Philadelphia Railroad Co. v. Miles that "[cjourts of justice may 
interpose to compel those who perform a business concerning the 
public, by the use of private means, to fulfil [sic] their duty to the 
public, — but not a whit beyond." 89 As such, it is apparent that 
these courts were well aware of the quasi-public standard and had 
been utilizing it in their analysis of public accommodation laws. 

As mentioned earlier, in 1876 the Supreme Court endorsed 
the quasi-public standard for evaluating legislative regulation of 
commercial activity in Munn v. Illinois. 90 It seems that post-Munn 
courts then amplified their evaluations of institutions' public 
characters in public accommodation contexts. In deciding whether 
a skating rink was a public accommodation in Bowlin v. Lyon, the 
Iowa Supreme Court employed such language extensively, 91 but 
found the lack of public control and presence of exclusive control 
by the business owner to be the most significant factor. 92 The New 
York Court of Appeals came to the opposite conclusion in People v. 
King, noting that, although "[t]he line of demarkation [sic] 
between [public accommodation laws'] lawful and unlawful 
exercise is often difficult to trace," the principles of Munn required 
it to hold that "the quasi public use to which the owner . . . 

ss 48 Miss. 661 (1873). 

87 Id. at 682 ("The assertion of a right in all persons to be admitted to a 
theat[er] ... in no sense appropriates the private property of the lessee, owner or 
manager, to the public use."). 

88 Id. at 681. 

89 55 Pa. 209, 212 (1867). 

90 94 U.S. 113(1876). 

91 25 N.W. 766, 767 (Iowa 1885) ("In all matters of mere private concern he is left 
free to deal with whom he pleases .... There are, however, classes of business in the 
conduct and management of which, notwithstanding they may be conducted by private 
parties .... the general public has such interest as that they are properly the subject of 
regulation by law . . . ."); id. at 768 ("The ground upon which these restrictions are 
imposed is that persons engaged in these vocations are in some sense servants of the 
public . . . ."). 

92 Id. 


devoted his property [gave] the legislature a right to interfere." 93 
Similar analyses produced a wide variety of results. 94 

Another indicator that public character was the threshold 
issue for nineteenth and early-twentieth-century courts can be 
found in recurring assertions that wrongfully excluded plaintiffs 
were not denied social rights, but contractual, property, and civil 

9 3 People v. King, 18 N.E. 245, 247, 249 (N.Y. 1888). 

94 Compare Fruchey v. Eagleson, 43 N.E. 146 (Ind. App. 1896) (holding that an inn 
was a public accommodation due to its dictionary definition, which contained the word 
"public"), Ferguson v. Gies, 46 N.W. 718 (Mich. 1890) (holding a restaurant to be a 
public accommodation), Messenger v. State, 41 N.W. 638, 639 (Neb. 1889) (holding a 
barber shop to be a public accommodation because "[a] barber, by opening a shop, and 
putting out his sign, thereby invites every orderly and well-behaved person who may 
desire his services to enter his shop during business hours"), Fowler v. Benner, 13 Ohio 
N.P. (n.s.) 313 (1912) (holding that an ice cream parlor was a public accommodation), 
Johnson v. Humphrey Pop Corn Co., 14 Ohio Cir. Dec. 135 (1902) (holding that a 
bowling alley was a public accommodation, although not statutorily mentioned), and 
Babb v. Elsinger, 147 N.Y.S. 98, 100 (N.Y. App. Div. 1914) (holding that a saloon was a 
public accommodation because "[d]rinking places have been, from time immemorial, 
subject to legislative control"), with Cecil v. Green, 43 N.E. 1105 (111. 1896) (holding 
that a soda fountain in a drug store was not a public accommodation), Brown v. J.H. 
Bell Co., 123 N.W. 231 (Iowa 1909) (holding that a coffee booth at a food show, though 
rented from grocers' association, was not a public accommodation because the 
merchant had no interest in and did not affect association as a whole), Rhone v. 
Loomis, 77 N.W. 31 (Minn. 1898) (holding that a saloon was not public accommodation 
because the statute did not name such establishments specifically), Burks v. Bosso, 73 
N.E. 58 (N.Y. 1905) (holding that a bootblacking stand was not a public 
accommodation), and Kellar v. Koerber, 55 N.E. 1002 (Ohio 1899) (holding that a 
saloon was not a public accommodation because doing so would violate public policy by 
encouraging liquor trafficking and the frequenting of such establishments). But see 
Brown, 123 N.W. at 237 (Evans, C.J., dissenting) ("[Despite any contractual 
relationship between the merchant and the association,] [s]o far as the public was 
concerned the pure food show was one enterprise. The fact that many persons 
representing many lines of goods participated in the enterprise did not in any sense 
destroy its unity."); Rhone, 77 N.W. at 33 (Start, C.J., dissenting) (responding to the 
majority by claiming it to be clear that the legislature intended the law to encompass 
such establishments due to their public nature despite a lack of express recognition by 
the legislature). The converse can also be used to illustrate that an organization's 
public character was the starting point for the courts: where a black man was denied 
admission to an orchestra and there was no public accommodation law, the Supreme 
Court of Missouri noted that "it is not necessary to a proper disposition of this case to 
say how far or to what extent theaters are to be regarded as public places . . . ." 
Younger v. Judah, 19 S.W. 1109, 1111 (Mo. 1892); see also Grannan v. Westchester 
Racing Ass'n, 47 N.E. 896 (N.Y. 1897) (holding that a race track did not violate public 
accommodation law by excluding a man that attempted to bribe a jockey, as that man 
was not part of the "public" to which the law ensured access, even assuming the law 
could be said to apply to race track). 


rights. 95 Presumably, in a perfectly egalitarian legal system, only 
private institutions are capable of denying social rights because 
true social status can only be conferred by private entities. 
Conversely, only public institutions are capable of denying civil 
rights because only those institutions provide services generally 
regarded as afforded to all persons. 96 Following this logic, the 
courts' continued explicit statements that plaintiffs were not being 
denied social rights in those circumstances shows that the courts' 
analyses first required resolution of the public-private issue and 
that social rights were not considered public benefits. 

Thus, the question then becomes what actual rights did 
lawyers assert to shield defendants from public accommodation 

95 See Brown, 123 N.W. at 233 ("These civil rights acts do not confer equality of 
social rights or privileges, nor could they enforce social intercourse, and it is doubtful, 
to say the least, if they could be made to apply to purely private business."); Coger v. 
Nw. Union Packet Co., 37 Iowa 145, 157 (1873) ("Without doubting that social rights 
and privileges are not within the protection of the laws . . . , we are satisfied that the 
rights and privileges which were denied plaintiff are not within that class. . . . Her 
money would not purchase for her that which the same sum would entitle a white 
passenger .... In these matters her rights of property were invaded . . . ."); Ferguson, 
46 N.W. at 720 ("Socially people may do as they please within the law, and whites may 
associate together, as may blacks, and exclude whom they please from their dwellings 
and private grounds; but there can be no separation in public places between people on 
account of their color alone which the law will sanction."); People v. King, 18 N.E. 245, 
248 (N.Y. 1888) ("It is of course impossible to enforce social equality by law. But the 
law in question simply insures to colored citizens the right to admission, on equal 
terms with others, to public resorts, and to equal enjoyment of privileges of a quasi 
public character."); Johnson, 14 Ohio Cir. Dec. at 138 ("A man is at liberty to select for 
his associates whom he will, provided only that the party whom he selects is willing to 
be his associate. . . . [B]ut this does not give [him] . . . the right to say who shall be 
admitted to the privileges of the public places . . . ."). But see Brown, 123 N.W. at 237 
(Evans, C.J., dissenting) ("It does not attempt to deal with social rights, nor is there 
any question of social rights involved in this case, nor was the humiliation of the 
plaintiff a mere 'social humiliation,' as indicated in the majority opinion."). 

96 See Bell v. Maryland, 378 U.S. 226, 293 (1964) ("A review of the relevant 
congressional debates reveals that the concept of civil rights which lay at the heart of 
both of the contemporary legislative proposals and of the Fourteenth Amendment 
encompassed the right to equal treatment in public places — a right explicitly 
recognized to be a 'civil' rather than a 'social' right."); id. at 294 ("Although it was 
commonly recognized that in some areas the civil-social distinction was misty, the 
critical fact is that it was generally understood that 'civil rights' certainly included the 
right of access to places of public accommodation for these were most clearly places and 
areas of life where the relations of men were traditionally regulated by governments." 
(footnote omitted)). 


law applicability? Generally speaking, they argued in terms of 
"property" and "individual liberty" and relied upon the notion that 
they should be able to autonomously conduct their businesses. 97 
The language employed by the Illinois Supreme Court in Cecil v. 
Green is particularly suggestive of a contractual-type liberty: 

The personal liberty of an individual in his business 
transactions, and his freedom from restrictions, is a question 
of the utmost moment; and no construction can be adopted by 
which an individual right of action will be included as 
controlled within a legislative enactment, unless clearly 
expressed in such enactment, and certainly included within 
the constitutional limitation on the power of the legislature. 98 

While this language does allude to contractual rights, Munn 
had recently made it relatively clear that economic liberties were 
not considered fundamental rights in the face of legislative 
regulation. 99 As such, it seems that courts recognized a separate, 
non-economic right of persons to associate on an immediate level, 
and the related right of those persons to be free from legislation 
affecting those aspects of their affairs that did not touch on the 
public interest. 

Further, if one accepts the proposition discussed above that 
legislatures extend social rights to plaintiffs by forcing their 

97 See, e.g., Donnell v. State, 48 Miss. 661, 682 (1873) ("[C]ounsel for the appellant 
has [argued] . . . that private property shall not be taken for public use unless 
compensation be first made."). 

98 43 N.E. at 1106. 

99 Munn v. Illinois, 94 U.S. 113, 125 (1876) ("From this it is apparent that, down to 
the time of the adoption of the Fourteenth Amendment, it was not supposed that 
statutes regulating the use, or even the price of the use, of private property necessarily 
deprived an owner of his property without due process of law."). If courts were basing 
any associational autonomy purely on contractual liberty (which is unlikely due to (1) 
the holding in Munn, and (2) the courts' continual reiterations of the evils of enforcing 
social equality), then the constitutional basis for such autonomy would run headlong 
into later Supreme Court cases such as Ferguson v. Skrupa, 372 U.S. 726 (1963) 
(holding that a Kansas statute did not violate substantive due process by requiring 
debt-adjusters to be lawyers). However, it must be noted that the Court has approved 
economic fundamental rights in the area of commercial speech. See Va. State Bd. of 
Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976) (holding that 
statutory bans on advertising prescription drug prices violated the First and 
Fourteenth Amendments). Perhaps a commercial freedom of association right is not so 
attenuated from a commercial free speech right. 


access to private institutions, it follows that by doing so, they 
infringe upon the social rights of defendants. Therefore, at least in 
cases where the organization at issue was genuinely private, 
courts had to be recognizing some associational right. This right 
may have included within it contractual liberty, but it did not at 
all depend on expression or intimacy. And, whether defendants 
ultimately prevailed or not, courts were recognizing this right as 
an initial matter, as evidenced by their persistent practice of first 
analyzing the public character of defendant organizations. 

Contemporaneously, the "separate but equal" line of cases, 
though they espouse a now-debunked doctrine, illustrate that the 
presence of public interest was the key concern in discrimination 
contexts. While relying on antiquated notions of racial inferiority, 
those courts determined that, just as some establishments were so 
affected with the public interest that they could not exclude, some 
establishments furthered the public interest by segregation. 100 Of 
course, at the center of these cases is Plessy u. Ferguson. 101 There, 

100 See, e.g., Chiles v. Chesapeake & Ohio Ry. Co., 218 U.S. 71, 77 (1910) ("The 
extent of the difference based upon the distinction between the white and colored races 
which may be observed in legislation or in the regulations of carriers has been 
discussed so much that we are relieved from further enlargement upon it."); The Sue, 
22 F. 843, 846 (D. Md. 1885) ("This discrimination on account of race or color is one 
which it must be conceded goes to the very limit of the right of a carrier to regulate the 
privileges of his passengers, and it can only be exercised when the carrier has it in his 
power to provide for the passenger, who is excluded from a place to which another 
person, paying the same fare, is admitted, accommodations equally safe, convenient, 
and pleasant."); Coger, 37 Iowa at 150 ("The defendant, as a common carrier of 
passengers, had the legal right ... to adopt reasonable rules and regulations 
concerning the convenience, comfort, and safety of its passengers . . . ."); Roberts v. City 
of Boston, 59 Mass. 198, 208 (1849) ("The power of general superintendence vests a 
plenary authority ... to arrange, classify, and distribute pupils, in such a manner as 
they think best adapted to their general proficiency and welfare."); People ex rel. Cisco 
v. Sch. Bd., 61 N.Y.S. 330, 331 (N.Y. App. Div. 1899) ("[T]he school authorities have 
power, when in their opinion the interests of education will be promoted thereby, to 
establish schools for the exclusive education of colored children . . . ."); W. Chester & 
Phila. R.R. Co. v. Miles, 55 Pa. 209, 212 (1867) ("The right of the carrier to separate his 
passengers is founded upon two grounds — his right of private property in the means of 
conveyance, and the public interest. ... to preserve order and decorum . . . ."); 
Commonwealth v. George, 61 Pa. Super. 412, 422 (1915) ("The defendant was 
permitted to make reasonable regulations for the comfort and convenience of his 
patrons, such regulations as the established usages, customs and traditions of the 
people, and the preservation of the public peace and good order demand."). 

101 163 U.S. 537 (1896). 


while the Supreme Court considered then-prevailing public 
interests in upholding Louisiana's railroad segregation law, 102 
Harlan's famous dissent disagreed with the Court's asserted 
balance of such interests, but most importantly, in asserting that 
balancing those interests should yield the opposite result, Harlan 
continually reiterated the public nature of the discrimination at 
issue. 103 Further, because Louisiana's law prevented blacks and 
whites from sitting together even if they wanted to, it certainly 
infringed upon associational freedom, and Harlan's language 
indicated that he was contemplating this sort of freedom in his 

If a white man and a black man choose to occupy the same 
public conveyance on a public highway, it is their right to do 
so; and no government, proceeding alone on grounds of race, 
can prevent it without infringing the personal liberty of each. 
... If a state can prescribe, as a rule of civil conduct, that 
whites and blacks shall not travel as passengers in the same 
railroad coach, why may it not so regulate the use of the 
streets of its cities and towns as to compel white citizens to 
keep on one side of a street, and black citizens to keep on the 
other? 104 

102 Id. at 544 ("[The Fourteenth Amendment] could not have been intended to 
abolish distinctions based upon color, or to enforce social, as distinguished from 
political, equality, or a commingling of the two races upon terms unsatisfactory to 

103 Harlan belabored the point that railroads are quasi-public entities. Id. at 553-54 
(Harlan, J., dissenting) (citing Township of Pine Grove v. Talcott, 86 U.S. (19 Wall.) 
666, 676 (1874); Olcott v. Supervisors, 83 U.S. (16 Wall.) 678, 694 (1872); N.J. Steam 
Nav. Co. v. Merchants' Bank of Boston, 47 U.S. (6 How.) 344, 382 (1848)). Then, he 

In respect of civil rights, common to all citizens, the [Constitution of the 
United States does not, I think, permit any public authority to know the race 
of those entitled to be protected in the enjoyment of such rights. ... If evils 
will result from the commingling of the two races upon public highways 
established for the benefit of all, they will be infinitely less than those that 
will surely come from state legislation regulating the enjoyment of civil rights 
upon the basis of race. 

Id. at 554, 562. This shows that Harlan recognized (1) that Plessy had been denied civil 
rights, and (2) that civil rights pertain to public activities, not private ones. 

104 Id. at 557. 


In 1907, the Supreme Court would pass upon the validity of a 
California public accommodation law in Western Turf Association 
v. Greenberg. 105 Writing for an undivided Court, Harlan echoed 
the sentiments of the state courts discussed above by noting that 
the establishment at issue was "so far affected with a public 
interest that the state may, in the interest of good order and fair 
dealing, require defendant to perform its engagement to the public 
. . . ." 106 Fifty-seven years later, Justices Douglas and Goldberg in 
Bell v. Maryland would indicate that these historical notions of 
association in the face of public accommodation had stuck: 
associational rights are not violated by such laws when the 
establishment is sufficiently public. 107 The opinion is brimming 
with language contemplating associational freedom in the context 
of public accommodation laws, 108 but Justice Goldberg's 
concurrence perhaps says it best: 

"> 5 204 U.S. 359 (1907). 

106 Id. at 364. It is interesting to note that as far as the establishment's defense, 
Harlan would only consider whether the public accommodation law deprived it of 
property without due process of law. Id. at 363. The Court would not consider whether 
the law deprived the establishment of liberty without due process of law because it was 
a corporation, as Harlan noted that "the liberty guaranteed by the 14th Amendment 
against deprivation without due process of law is the liberty of natural, not artificial, 
persons." Id. If the general consensus was that only individual liberty was protected by 
the Fourteenth Amendment, this explains the practice discussed above of defendants 
stating their defenses in terms of property and contractual liberty (i.e., not relying so 
much on liberty provision of the Fourteenth Amendment), and courts recognizing them 
as such. This does not mean, however, that concerns of individual liberty were not 
implicit in the courts' analyses. 

107 378 U.S. 226, 242, 255 (Douglas, J., concurring) (1964) ("Are they not as much 
affected with a public interest? Is the right of a person to eat less basic than his right to 
travel . . . ?"); id. at 286 (Goldberg, J., concurring). 

108 Id. at 252 (Douglas, J., concurring) ("Private property is involved, but it is 
property that is serving the public. As my Brother GOLDBERG says, it is a 'civil' right, 
not a 'social' right, with which we deal."); id. at 253 ("Some businesses, like the 
classical country store . . . make the store an extension, so to speak, of the home. But 
such is not this case."); id. at 261-62 ("So far as the corporate owner is concerned, what 
constitutional right is vindicated? It is said that ownership of property carries the right 
to use it in association with such people as the owner chooses. The corporate owners in 
these cases — the stockholders — are unidentified members of the public at large, who 
probably never saw these petitioners, who may never have frequented these 
restaurants. What personal rights of theirs would be vindicated by affirmance? Why 
should a stockholder in Kress, Woolworth, Howard Johnson, or any other corporate 
owner in the restaurant field have standing to say that any associational rights 


Prejudice and bigotry in any form are regrettable, but it is the 
constitutional right of every person to close his home or club 
to any person or to choose his social intimates and business 
partners solely on the basis of personal prejudices including 
race. These and other rights pertaining to privacy and private 
association are themselves constitutionally protected 

We deal here, however, with a claim of equal access to public 
accommodations. This is not a claim which significantly 
impinges upon personal associational interests . . . . 109 

The importance of Bell is that, with minimal reference to 
Patterson, 110 the Court evaluated the associational freedoms of 
establishments affected by public accommodation laws according 
to the degree to which those establishments' activities were public. 
The Bell opinion itself also relied upon historical sources, 111 and 
as such, it indicates that the Roberts Court had a historical basis 
from which it could have determined that passing upon the 
validity of any public accommodation law should require a 
determination of whether the activity at issue is truly public and 
an evaluation of whether plaintiffs are litigating social or civil 

The above material tends to show that there is a historical 
basis, deeply rooted in the American tradition of civil liberty, for a 
non-expressive and non-intimate associational right based on 
privacy. This right is apparent from the tendency of courts to first 
determine the public extent of an organization's activities when 
deciding on public-accommodation-law enforceability. It is further 
evidenced by courts' acknowledgments that the purely social 
rights of plaintiffs could not be vindicated outside a civic realm, 

personal to him are involved? Why should his interests — his associational rights — 
make it possible to send these Negroes to jail?") (emphasis added). 

109 Id. at 313 (Goldberg, J., concurring). 

110 The Court considered Patterson in the context of whether an organization had 
standing to assert the constitutional rights of its individual members. Id. at 267 
(Douglas, J., concurring). 

111 Id. at 291-300 (Goldberg, J., concurring) (discussing the debates surrounding the 
adoption of the Fourteenth Amendment and the Civil Rights Acts of 1866 and 1875); 
id. at 299 (citing Donnell v. State, 48 Miss. 661 (1873)); id. at 313 (citing Ferguson v. 
Gies, 46 N.W. 718 (Mich. 1890)). 


which implicitly recognizes the rights of defendants in purely 
social settings. Finally, it is clear that the Patterson Court did not 
carve the freedom of association out of whole cloth and that 
modern courts therefore have a deeper historical basis on which to 
recognize a third level of associational autonomy — one that would 
require considering organizations' public degree before inquiring 
into their intimacy or expression. 

III. A New Approach from the Historical Tradition 

The evidence presented outlines a historical tradition of 
valuing organizations' private autonomy that began with the 
inception of the Fourteenth Amendment and continued as courts 
ruled on public accommodation suits. For an acknowledgment of 
this tradition to have any practical use, two questions must be 
answered. First, which methods of determining an organization's 
private nature have the firmest historical and precedential 
support? Second, how would those methods alter the modern 
freedom of association analysis? 

One can glean three approaches from the congressional 
debates surrounding the Civil Rights Act of 1875. First, there is 
the view of Thurman, who seemed to think that state anti- 
discrimination measures could not be constitutionally imposed on 
any non-state actor. 112 At the other extreme is Sumner's initial 
approach, which presumed that any institution receiving the 
benefits of incorporation, even churches and cemeteries, could not 
claim the freedom of association in the face of state anti- 
discrimination measures. 113 Finally, there is Carpenter's analysis, 
which would constitute the ultimate approach of the Civil Rights 

112 See discussion supra Part II. A; see also supra notes 52, 55, 56 and accompanying 

113 See discussion supra Part II.A; see also supra note 51. But see, for example, 
Faulkner v. Solazzi, which illustrates the primary counter-concern to Sumner's 
position, stating: 

In a sense, every business which has a promise of success within it is one 
which appeals to a public need, and in the sense that it supplies a need it is 
for the public accommodation. But the term 'public accommodation,' as 
descriptive of places within the purview of the act, clearly was not chosen as 
one to be interpreted in any such all-embracing sense. 

65 A. 947, 949 (Conn. 1907). 


Act of 1875 and have the most resilience amongst the state courts. 
This approach maintained that state anti-discrimination 
measures could be imposed on private entities as long as they 
were common carriers or other entities traditionally regarded as 
"affected with the public interest." 114 

However, even within the prevailing approach, two sub- 
methodologies for determining public accommodation law 
applicability and validity emerge. First, there are those courts and 
justices that attempted to interpret such laws liberally, and 
sought ultimately to further the "spirit" of anti-discrimination. 115 
Second, there are those that endeavored to apply principles of 
statutory interpretation to such laws, and in doing so they also 
pondered what activities and institutions could logically be 
encompassed by such laws based on how public those activities 
and institutions were. 116 

114 See discussion supra Part II.A; see also supra notes 47, 53 (Frelinghuysen 
arguing similarly), 57 (Conkling), 58 (Boreman) and accompanying text. 

115 See, e.g.. Brown v. J.H. Bell Co., 123 N.W. 231, 237 (Iowa 1909) (Evans, C.J., 
dissenting) ("[Inasmuch as the plaintiff was refused service because she was black,] it 
seems to me that the case comes fairly within the letter of the statute, and clearly 
within its spirit. . . . The majority opinion is professedly 'divorced from sentiment'; but 
the statute is a statute of sentiment."); Rhone v. Loomis, 77 N.W. 31, 33 (Minn. 1898) 
(Start, C.J., dissenting) ("[Despite the fact that the statute does not mention saloons,] 
its meaning is clear, and it is manifest that the legislature intended to place saloons 
within the statute . . . ."); Grannan v. Westchester Racing Ass'n, 47 N.E. 896 (N.Y. 
1897) (relying heavily upon legislative goals by holding that plaintiff was not entitled 
to recover because he was white and was not excluded based on his color); Johnson v. 
Humphrey Pop Corn Co., 14 Ohio Cir. Dec. 135, 137-38 (1902) ("Surely if these statutes 
are to accomplish the purposes declared . . . , the word 'person' must be held to include 
artificial persons, that is, private corporations .... It was without doubt the intention 
of the legislature to enact into positive law what has come to be recognized as 
justice . . . ."). 

116 See, e.g., Faulkner, 65 A. at 949 ("In a sense, every business which has a promise 
of success within it is one which appeals to a public need, and in the sense that it 
supplies a need it is for the public accommodation. But the term 'public 
accommodation,' as descriptive of places within the purview of the act, clearly was not 
chosen as one to be interpreted in any such all-embracing sense."); Brown, 123 N.W. at 
233 ("[Tjhe statute under consideration was not made to, nor does it, apply to every 
private business, even if the Legislature had the power to make it so read, and the 
enumeration of places in the nature of inns . . . , of public conveyances . . . , and places 
of amusements, necessarily excludes all other places of business or places of 
amusement not of the kind enumerated."); Rhone, 77 N.W. at 32 ("In this act . . . the 
legislature specifically enumerates the places and things to which its provisions should 
apply at great length and with great particularity . . . but nowhere mentions saloons, or 


This historically-based, non-expressive, and non-intimate 
freedom of association would protect private organizations to the 
degree that they are not affected with a public interest. Because 
"affected with a public interest" essentially means providing a 
benefit to which the public should be entitled, on a practical level, 
this right would function by limiting the range of activities, 
institutions, and ultimately, benefits that public accommodation 
laws could reach according to the approaches discussed above. 
Regardless of which approach is followed, it is likely that neither 
would deem intangibles such as "business contacts" and 
"leadership skills" as public benefits, at least not as far as they are 
gleaned from private functions. These are the sorts of things that 
the Court presumed to be encompassed by Minnesota and New 
Jersey public accommodation laws in Roberts and Dale 
respectively, and as such, that presumption is the aspect of 
modern freedom of association doctrine that would be altered by 
the historical right. 

Under the first approach, ensured access to such benefits is 
conceivable but unlikely. For the framers and older courts, even 
liberal interpretations of public accommodation laws and 
furtherance of anti-discrimination goals pertained to covering a 
wider range of physical places. Admittedly, as concepts of social 
equality (and social mobility) evolved, state legislatures probably 
discerned an interest in ensuring access to more intangible 
benefits. Therein lies the point, however; such goals pertain to 

places where intoxicating drinks are sold."); Burks v. Bosso, 73 N.E. 58, 59 (N.Y. 1905) 
C[I]f bootblacking stands are to be brought within the purview of the statute . . . , it 
will require no great stretch of the imagination to apply this statute to innumerable 
places and callings that have never been, and probably never will be, regarded as 
subject to legislative control . . . ."); Babb v. Elsinger, 147 N.Y.S. 98, 100 (N.Y. App. Div. 
1914) ("Drinking places have been, from time immemorial, subject to legislative 
control. ... If an inn is a place of public accommodation, why not a place where 
intoxicating liquors are sold in which the public has, from the earliest times, shown 
greater solicitude than in inns? It is of the greatest significance that in England the 
equivalent of the word 'saloon' as used in this country is the word 'public house.'"); 
People ex rel. Cisco v. Sch. Bd., 61 N.Y.S. 330, 332 (N.Y. App. Div. 1899) ("The 
entertainment offered in one of such places is no equivalent to that offered in 
another. . . . Places of public amusement are for the furnishing of particular 
entertainment. Each differs from all others. Each is sui generis."); Fowler v. Benner, 13 
Ohio N.P. (n.s.) 313, 320 (1912) ("The duty of the court, in this instance, is wholly that 
of interpretation and construction . . . ."). 


social equality, not civil equality. And, as discussed in Part II, 
when the state confers purely social rights outside the civic realm 
to the public through an unwilling private party, that private 
party's associational freedoms are infringed. 

Applying the second approach, ensured access to intangible 
benefits becomes even more unlikely. Strict interpretation of 
statutes ensuring access to "business establishments" and "public 
places" cannot readily yield the conclusion that the legislature has 
created a public gate to social benefits. Even though legislatures 
are probably capable of enumerating every conceivable locale, 
event, or organization in their laws, the framers and courts would 
have rejected such wide latitude, at least to the extent that they 
deemed the benefits conferred to be of a social character. 


Modern freedom of association doctrine examines the 
intimate or expressive nature of organizations to determine 
whether they may exclude persons in the face of state public 
accommodation laws. Commentators have recognized the flaws of 
this approach, which stemmed from the Court's decision in 
Roberts and its questionable reliance upon Patterson. John Inazu 
argues that the freedom of association emerged in Patterson and 
that historical sources largely suggest that the freedom of 
assembly was traded for the modern freedom of association in 
Patterson. In response, this article argues that a freedom of 
association (distinct from the freedom of assembly) pre-dates 
Patterson, as it is discernable from the debates amongst 
Fourteenth Amendment framers and the opinions of 
contemporaneous courts. These sources reveal an associational 
right, deeply rooted in the American tradition of civil liberty, that 
protects the associational autonomy of activities and institutions 
to the extent that they are not affected with a public interest. 

This historically-based approach inquires first into what 
public interests, if any, are affected by an organization's activities 
and, therefore, places sensible (and often tangible) limits on public 
accommodation laws. While older courts ranged in their analyses 
from construing such laws liberally to viewing them through the 
lens of strict statutory interpretation, one pattern is evident: to 
the extent that plaintiffs sought to have their social rights 


vindicated they were denied relief, and courts continually 
recognized that purely social functions were not encompassed by 
public accommodation laws. In the end, the compass for locating 
the line between public and private may remain imprecise and 
inconsistent, but it is clear that under a historically-based 
approach to freedom of association, the position of that line is the 
threshold inquiry, and ultimately, the vindication of purely social 
rights does not traverse it. 

Patrick Lofton